Petitioner Ginzburg and three corporations which he controlled
were convicted of violating the federal obscenity statute, 18
U.S.C. § 1461, by mailing three publications: an expensive
hardcover magazine dealing with sex, a sexual newsletter, and a
short book purporting to be a sexual autobiography. The prosecution
charged that these publications were obscene in the context of
their production, sale, and attendant publicity. Besides testimony
as to the merit of the material, abundant evidence was introduced
that each of the publications was originated or sold as stock in
trade of the business of pandering, i.e.,
the purveying of
publications openly advertised to appeal to the customers' erotic
interest. Mailing privileges were sought from places with
salaciously suggestive names; circulars for the magazine and
newsletter stressed unrestricted expression of sex, and advertising
of the book which purported to be of medical and psychiatric
interest, but whose distribution was not confined to a professional
audience, dwelt on the book's sexual imagery. In finding
petitioners guilty, the trial judge applied the obscenity standards
first enunciated in Roth v. United States, 354 U.
, and the Court of Appeals affirmed.
Evidence that the petitioners deliberately
represented the accused publications as erotically arousing and
commercially exploited them as erotica solely for the sake of
prurient appeal amply supported the trial court's determination
that the material was obscene under the standards of the
The mere fact of profit from
the sale of the publication is not considered; but, in a close
case, a showing of exploitation of interests in titillation by
pornography with respect to material lending itself to such
exploitation through pervasive treatment or description of sexual
matters supports a determination that the material is obscene. Pp.
383 U. S.
338 F.2d 12, affirmed.
Page 383 U. S. 464
MR. JUSTICE BRENNAN delivered the opinion of the Court.
A judge sitting without a jury in the District Court for the
Eastern District of Pennsylvania [Footnote 1
] convicted petitioner Ginzburg and three
corporations controlled by him upon all 28 counts of an indictment
charging violation of the federal obscenity statute, 18 U.S.C. §
1461 (1964 ed.). [Footnote 2
. Each count alleged that a resident of the Eastern
District received mailed matter, either one of three publications
challenged as obscene, or advertising telling how and where the
Page 383 U. S. 465
be obtained. The Court of Appeals for the Third Circuit
affirmed, 338 F.2d 12. We granted certiorari, 380 U.S. 961. We
affirm. Since petitioners do not argue that the trial judge
misconceived or failed to apply the standards we first enunciated
in Roth v. United States, 354 U.
, [Footnote 3
the only serious question is whether those standards were correctly
applied. [Footnote 4
In the cases in which this Court has decided obscenity questions
it has regarded the materials as sufficient in
themselves for the determination of the question. In the present
case, however, the prosecution charged the offense in the context
of the circumstances of production, sale, and publicity, and
assumed that, standing alone, the publications themselves might not
be obscene. We agree that the question of obscenity may include
consideration of the setting in which the publications were
presented as an aid to determining the question
Page 383 U. S. 466
of obscenity, and assume without deciding that the prosecution
could not have succeeded otherwise. As in Mishkin v. New York,
p. 383 U. S. 502
as did the courts below, 224 F.Supp., at 134, 338 F.2d at 14-15, we
view the publications against a background of commercial
exploitation of erotica solely for the sake of their prurient
appeal. [Footnote 5
] The record
in that regard amply supports the decision of the trial judge that
the mailing of all three publications offended the statute.
The three publications were EROS, a hard-cover magazine of
expensive format; Liaison, a bi-weekly newsletter, and The
Housewife's Handbook on Selective Promiscuity
), a short book. The issue of EROS specified in
the indictment, Vol. 1, No. 4, contains 15 articles and
photo-essays on the subject of love, sex, and sexual relations. The
specified issue of Liaison, Vol. 1, No. 1, contains a prefatory
"Letter from the Editors" announcing its dedication to "keeping sex
an art and preventing it from becoming a science." The remainder of
the issue consists of digests of two
Page 383 U. S. 467
articles concerning sex and sexual relations which had earlier
appeared in professional journals and a report of an interview with
a psychotherapist who favors the broadest license in sexual
relationships. As the trial judge noted,
"[w]hile the treatment is largely superficial, it is presented
entirely without restraint of any kind. According to defendants'
own expert, it is entirely without literary merit."
224 F. Supp. at 134. The Handbook
purports to be a
sexual autobiography detailing with complete candor the author's
sexual experiences from age 3 to age 36. The text includes, and
prefatory and concluding sections of the book elaborate, her views
on such subjects as sex education of children, laws regulating
private consensual adult sexual practices, and the equality of
women in sexual relationships. It was claimed at trial that women
would find the book valuable, for example, as a marriage manual or
as an aid to the sex education of their children.
Besides testimony as to the merit of the material, there was
abundant evidence to show that each of the accused publications was
originated or sold as stock in trade of the sordid business of
pandering -- "the business of purveying textual or graphic matter
openly advertised to appeal to the erotic interest of their
customers." [Footnote 7
early sought mailing privileges from the postmasters of Intercourse
and Blue Ball, Pennsylvania. The trial court found the obvious,
that these hamlets were chosen only for the value their names would
have in furthering petitioners' efforts to sell their publications
on the basis of salacious appeal; [Footnote 8
] the facilities of the
Page 383 U. S. 468
post offices were inadequate to handle the anticipated volume of
mail, and the privileges were denied. Mailing privileges were then
obtained from the postmaster of Middlesex, New Jersey. EROS and
Liaison thereafter mailed several million circulars soliciting
subscriptions from that post office; over 5,500 copies of the
Handbook were mailed.
The "leer of the sensualist" also permeates the advertising for
the three publications. The circulars sent for EROS and Liaison
stressed the sexual candor of the respective publications, and
openly boasted that the publishers would take full advantage of
what they regarded as an unrestricted license allowed by law in the
expression of sex and sexual matters. [Footnote 9
] The advertising for the
Page 383 U. S. 469
apparently mailed from New York, consisted
almost entirely of a reproduction of the introduction of the book,
written by one Dr. Albert Ellis. Although he alludes to the book's
informational value and its putative therapeutic usefulness, his
remarks are preoccupied with the book's sexual imagery. The
solicitation was indiscriminate, not limited to those, such as
physicians or psychiatrists, who might independently discern the
Page 383 U. S. 470
therapeutic worth. [Footnote
] Inserted in each advertisement was a slip labeled
"GUARANTEE" and reading,
"Documentary Books, Inc. unconditionally guarantees full refund
of the price of THE HOUSEWIFE'S HANDBOOK ON SELECTIVE PROMISCUITY
if the book fails to reach you because of U.S. Post Office
Similar slips appeared in the advertising for EROS and Liaison;
they highlighted the gloss petitioners put on the publications,
eliminating any doubt what the purchaser was being asked to buy.
This evidence, in our view, was relevant in determining the
ultimate question of obscenity, and, in the context of this record,
serves to resolve all ambiguity and doubt. The deliberate
representation of petitioners' publications as erotically arousing,
for example, stimulated the reader to accept them as prurient; he
looks for titillation, not for saving intellectual content.
Similarly, such representation would tend to force public
confrontation with the potentially offensive aspects of the work;
the brazenness of such an appeal heightens the offensiveness of the
publications to those who are offended by such material. And the
circumstances of presentation and dissemination of material are
equally relevant to determining whether social importance claimed
for material in the courtroom was, in the circumstances, pretense
or reality -- whether it was the basis upon which it was traded in
the marketplace or a spurious claim for litigation purposes. Where
the purveyor's sole emphasis is on the sexually provocative aspects
of his publications, that fact may be decisive in the determination
of obscenity. Certainly in a prosecution which, as here, does not
necessarily imply suppression
Page 383 U. S. 471
of the materials involved, the fact that they originate or are
used as a subject of pandering is relevant to the application of
A proposition argued as to EROS, for example, is that the trial
judge improperly found the magazine to be obscene as a whole, since
he concluded that only four of the 15 articles predominantly
appealed to prurient interest and substantially exceeded community
standards of candor, while the other articles were admittedly
nonoffensive. But the trial judge found that
"[t]he deliberate and studied arrangement of EROS is
editorialized for the purpose of appealing predominantly to
prurient interest and to insulate through the inclusion of
224 F. Supp. at 131. However erroneous such a conclusion might
be if unsupported by the evidence of pandering, the record here
supports it. EROS was created, represented and sold solely as a
claimed instrument of the sexual stimulation it would bring. Like
the other publications, its pervasive treatment of sex and sexual
matters rendered it available to exploitation by those who would
make a business of pandering to "the widespread weakness for
titillation by pornography." [Footnote 12
] Petitioners' own expert agreed, correctly we
think, that " [i]f the object [of a work] is material gain for the
creator through an appeal to the sexual curiosity and appetite,"
the work is pornographic. In other words, by animating sensual
detail to give the publication a salacious cast, petitioners
reinforced what is conceded by the Government to be an otherwise
A similar analysis applies to the judgment regarding the
The bulk of the proofs directed to social
importance concerned this publication. Before selling publication
rights to petitioners, its author had
Page 383 U. S. 472
printed it privately; she sent circulars to persons whose names
appeared on membership lists of medical and psychiatric
associations, asserting its value as an adjunct to therapy. Over
12,000 sales resulted from this solicitation, and a number of
witnesses testified that they found the work useful in their
professional practice. The Government does not seriously contest
the claim that the book has worth in such a controlled, or even
neutral, environment. Petitioners, however, did not sell the book
to such a limited audience, or focus their claims for it on it
supposed therapeutic or educational value; rather, they
deliberately emphasized the sexually provocative aspects of the
work in order to catch the salaciously disposed. They proclaimed
its obscenity, and we cannot conclude that the court below erred in
taking their own evaluation at its face value and declaring the
book as a whole obscene despite the other evidence. [Footnote 13
The decision in United States v. Rebhuhn,
109 F.2d 512,
is persuasive authority for our conclusion. [Footnote 14
Page 383 U. S. 473
was a prosecution under the predecessor to § 1461, brought in
the context of pandering of publications assumed useful to scholars
and members of learned professions. The books involved were written
by authors proved in many instances to have been men of scientific
standing, as anthropologists or psychiatrists. The Court of Appeals
for the Second Circuit therefore assumed that many of the books
were entitled to the protection of the First Amendment, and "could
lawfully have passed through the mails, if directed to those who
would be likely to use them for the purposes for which they were
written. . . ." 109 F.2d at 514. But the evidence, as here, was
that the defendants had not disseminated them for their "proper
use, but . . . woefully misused them, and it was that misuse which
constituted the gravamen of the crime." Id.
Speaking for the Court in affirming the conviction, Judge Learned
". . . [T]he works themselves had a place, though a limited one,
in anthropology and in psychotherapy. They might also have been
lawfully sold to laymen who wished seriously to study the sexual
practices of savage or barbarous peoples, or sexual aberrations; in
other words, most of them were not obscene per se.
several decisions, we have held that the statute does not in all
circumstances forbid the dissemination of such publications. . . .
However, in the case at bar, the prosecution succeeded . . . when
it showed that the defendants had indiscriminately flooded the
mails with advertisements, plainly designed merely to catch the
prurient, though under the guise of distributing works of
scientific or literary merit. We do not mean that the distributor
of such works is charged with a duty to insure that they shall
reach only proper hands, nor need we say what care he must use, for
these defendants exceeded any possible limit; the circulars were no
more than appeals
Page 383 U. S. 474
to the salaciously disposed, and no [factfinder] could have
failed to pierce the fragile screen, set up to cover that
109 F.2d at 514-515.
We perceive no threat to First Amendment guarantees in thus
holding that, in close cases, evidence of pandering may be
probative with respect to the nature of the material in question,
and thus satisfy the Roth
test. [Footnote 15
] No weight is ascribed to the fact that
petitioners have profited from the sale of publications which we
have assumed, but do not hold, cannot themselves be adjudged
obscene in the abstract; to sanction consideration of this fact
might indeed induce self-censorship, and offend the frequently
stated principle that commercial activity, in itself, is no
justification for narrowing the protection of expression secured by
the First Amendment. [Footnote
] Rather, the fact that each of these publications was
created or exploited entirely on the basis of its appeal to
prurient interests [Footnote
] strengthens the conclusion that the transactions
Page 383 U. S. 475
here were sales of illicit merchandise, not sales of
constitutionally protected matter. [Footnote 18
] A conviction for mailing obscene
publications, but explained in part by the presence of this
element, does not necessarily suppress the materials in question,
nor chill their proper distribution for a proper use. Nor should it
inhibit the enterprise of others seeking, through serious endeavor,
to advance human knowledge or understanding in science, literature,
or art. All that will have been determined is that questionable
publications are obscene in a context which brands them as obscene
as that term is defined in Roth
-- a use inconsistent with
any claim to the shelter of the First Amendment. [Footnote 19
"The nature of the materials is, of course, relevant as an
attribute of the defendant's conduct, but the materials are thus
placed in context from which they draw color and character. A
wholly different result might be reached in a different
Roth v. United States,
354 U.S. at 354 U. S. 495
(WARREN, C.J., concurring).
It is important to stress that this analysis simply elaborates
the test by which the obscenity vel non
of the material
must be judged. Where an exploitation of interests in titillation
by pornography is shown with respect to material lending itself to
Page 383 U. S. 476
through pervasive treatment or description of sexual matters,
such evidence may support the determination that the material is
obscene even though, in other contexts, the material would escape
Petitioners raise several procedural objections, principally
directed to the findings which accompanied the trial court's
memorandum opinion, Fed.Rules Crim.Proc. 23. Even on the assumption
that petitioners' objections are well taken, we perceive no error
affecting their substantial rights.
No challenge was or is made to venue under 18 U.S.C. § 3237
The federal obscenity statute, 18 U.S.C. § 1461, provides in
"Every obscene, lewd, lascivious, indecent, filthy or vile
article, matter, thing, device, or substance, and --"
"* * * *"
"Every written or printed card, letter, circular, book,
pamphlet, advertisement, or notice of any kind giving information,
directly or indirectly, where, or how, or from whom, or by what
means any of such mentioned matters . . . may be obtained . .
"* * * *"
"Is declared to be nonmailable matter and shall not be conveyed
in the mails or delivered from any post office or by any letter
"Whoever knowingly uses the mails for the mailing, carriage in
the mails, or delivery of anything declared by this section to be
nonmailable . . . shall be fined not more than $5,000 or imprisoned
not more than five years, or both, for the first such offense. . .
We are not, however, to be understood as approving all aspects
of the trial judge's exegesis of Roth,
for example, his
"the community as a whole is the proper consideration. In this
community, our society, we have children of all ages, psychotics,
feeble-minded and other susceptible elements. Just as they cannot
set the pace for the average adult reader's taste, they cannot be
overlooked as part of the community."
224 F. Supp. at 137. Compare Butler v. Michigan,
352 U. S. 380
The Government stipulated at trial that the circulars
advertising the publications were not themselves obscene; therefore
the convictions on the counts for mailing the advertising stand
only if the mailing of the publications offended the statute.
Our affirmance of the convictions for mailing EROS and Liaison
is based upon their characteristics as a whole, including their
editorial formats, and not upon particular articles contained,
digested, or excerpted in them. Thus, we do not decide whether
particular articles, for example, in EROS, although identified by
the trial judge as offensive, should be condemned as obscene
whatever their setting
Similarly, we accept the Government's concession, note 13 infra
that the prosecution
rested upon the manner in which the petitioners sold the Handbook;
thus, our affirmance implies no agreement with the trial judge's
characterizations of the book outside that setting.
It is suggested in dissent that petitioners were unaware that
the record being established could be used in support of such an
approach, and that petitioners should be afforded the opportunity
of a new trial. However, the trial transcript clearly reveals that,
at several points, the Government announced its theory that made
the mode of distribution relevant to the determination of
obscenity, and the trial court admitted evidence, otherwise
irrelevant, toward that end.
Roth v. United States, supra,
351 U.S. at 351 U. S.
-496 (WARREN, C.J., concurring).
Evidence relating to petitioners' efforts to secure mailing
privileges from these post offices was, contrary to the suggestion
of MR. JUSTICE HARLAN in dissent, introduced for the purpose of
supporting such a finding. Scienter
had been stipulated
prior to trial. The Government's position was revealed in the
following colloquy, which occurred when it sought to introduce a
letter to the postmaster of Blue Ball, Pennsylvania:
"The COURT. Who signed the letter'?"
"Mr. CREAMER. It is signed by Frank R. Brady, Associate
Publisher of Mr. Ginzburg. It is on Eros Magazine, Incorporated's
"The COURT. And your objection is --"
"Mr. SHAPIRO. It is in no way relevant to the particular issue
or publication upon which the defendant has been indicted, and, in
my view, even if there was an identification with respect to a
particular issue, it would be of doubtful relevance in that
"The COURT. Anything else to say?"
"Mr. CREAMER. If Your Honor pleases, there is a statement in
this letter indicating that it would be advantageous to this
publication to have it disseminated through Blue Ball,
Pennsylvania, post office. I think this clearly goes to intent, as
to what the purpose of publishing these magazines was. At least, it
clearly establishes one of the reasons why they were disseminating
"The COURT. Admitted."
Thus, one EROS advertisement claimed:
"Eros is a child of its times. . . . [It] is the result of
recent court decisions that have realistically interpreted
America's obscenity laws and that have given to this country a new
breadth of freedom of expression. . . . EROS takes full advantage
of this new freedom of expression. It is the magazine of sexual
In another, more lavish spread:
"EROS is a new quarterly devoted to the subjects of Love and
Sex. In the few short weeks since its birth, EROS has established
itself as the rave of the American intellectual community -- and
the rage of prudes everywhere! And it's no wonder: EROS handles the
subjects of Love and Sex with complete candor. The publication of
this magazine -- which is frankly and avowedly concerned with
erotica -- has been enabled by recent court decisions ruling that a
literary piece or painting, though explicitly sexual in content,
has a right to be published if it is a genuine work of art."
"EROS is a genuine work of art. . . ."
An undisclosed number of advertisements for Liaison were mailed.
The outer envelopes of these ads ask, "Are you among the chosen
few?" The first line of the advertisement eliminates the ambiguity:
"Are you a member of the sexual elite?" It continues:
"That is, are you among the few happy and enlightened
individuals who believe that a man and woman can make love without
feeling pangs of conscience? Can you read about love and sex and
discuss them without blushing and stammering?"
"If so, you ought to know about an important new periodical
"* * * *"
"In short, Liaison
is Cupid's Chronicle. . . ."
handles the subjects of love and sex
with complete candor, I wish to make it clear that it is not a
scandal sheet and it is not written for the man in the street.
is aimed at intelligent, educated adults who can
accept love and sex as part of life."
". . . I'll venture to say that, after you've read your first
biweekly issue, Liaison
will be your mo.st eagerly awaited
piece of mail."
There is much additional evidence supporting the conclusion of
petitioners' pandering. One of petitioners' former writers for
Liaison, for example, testified about the editorial goals and
practices of that publication.
Schwartz, Morals Offenses and the Model Penal Code, 63
Col.L.Rev. 669, 677 (1963).
The Government drew a distinction between the author's and
petitioners' solicitation. At the sentencing proceeding, the United
States Attorney stated:
". . . [the author] was distributing . . . only to physicians,
she never had widespread, indiscriminate distribution of the
Handbook, and, consequently, the Post Office Department did not
interfere. . . . If Mr. Ginzburg had distributed and sold and
advertised these books solely to . . . physicians . . . we, of
course, would not be here this morning with regard to The
Housewife's Handbook. . . ."
The Proposed Official Draft of the ALI Model Penal Code likewise
recognizes the question of pandering as relevant to the obscenity
issue, § 251.4(4); Tentative Draft No. 6 (May 6, 1957), pp. 1-3,
13-17, 4516, 53; Schwartz, supra, n
Craig, Suppressed Books,
195-206 (1963). Compare Grove Press, Inc. v.
Christenberry, 175 F.
, 496-497 (D.C.S.D.N.Y.1959), aff'd,
433 (C.A.2d Cir.1960); United States v. One Book Entitled
72 F.2d 705, 707 (C.A.2d Cir.1934), affirming
5 F. Supp.
(D.C.S.D.N.Y.1933). See also
The Trial of Lady
Chatterly -- Regina v. Penguin Books, Ltd. (Rolph. ed.1961).
Our conclusion is consistent with the statutory scheme. Although
§ 1461, in referring to "obscene . . . matter," may appear to deal
with the qualities of material in the abstract, it is settled that
the mode of distribution may be a significant part in the
determination of the obscenity of the material involved. United
States v. Rebhuhn, supra.
Because the statute creates a
criminal remedy, cf. Manual Enterprises v. Day,
370 U. S. 478
370 U. S. 495
(opinion of BRENNAN, J.), it readily admits such an interpretation,
compare United States v. I Photographs,
etc., 156 F.
See New York Times v. Sullivan, 376 U.
, 376 U. S.
-266; Smith v. California, 361 U.
, 361 U. S.
Valentine v. Chrestensen, 316 U. S.
, where the Court viewed handbills purporting to
contain protected expression as merely commercial advertising.
that decision with Jamison v. Texas,
318 U. S. 413
Murdock v. Pennsylvania, 319 U. S. 105
where speech having the characteristics of advertising was held to
be an integral part of religious discussions, and hence protected.
Material sold solely to produce sexual arousal, like commercial
advertising, does not escape regulation because it has been dressed
up as speech, or in other contexts might be recognized as
Compare Breard v. Alexandria, 341 U.
, with Martin v. Struthers, 319 U.
. Cf. Kovacs v. Cooper, 336 U. S.
; Giboney v. Empire Storage Co., 336 U.
; Cox v. Louisiana, 379 U.
,5 379 U. S.
One who advertises and sells a work on the basis of its prurient
appeal is not threatened by the perhaps inherent residual vagueness
of the Roth
test, cf. Dombrowski v. Pfister,
380 U. S. 479
380 U. S.
-487, 380 U. S.
-492; such behavior is central to the objectives of
criminal obscenity laws. ALI Model Penal Code, Tentative Draft No.
6 (May 6, 1957), pp. 1-3, 13-17; Comments to the Proposed Official
Draft § 251.4, supra;
Schwartz, Morals Offenses and the
Model Penal Code, 63 Col.L.Rev. 669, 677-681 (1963); Paul Schwartz,
Federal Censorship -- Obscenity in the Mail, 212-219 (1961);
see Mishkin v. New York, post,
p. 383 U. S. 502
383 U. S. 507
MR. JUSTICE BLACK, dissenting.
Only one stark fact emerges with clarity out of the confusing
welter of opinions and thousands of words written in this and two
other cases today. [Footnote 2/1
That fact is that Ginzburg, petitioner here, is now finally and
authoritatively condemned to serve five years in prison for
distributing printed matter about sex which neither Ginzburg nor
anyone else could possibly have known to be criminal. Since, as I
have said many times, I believe the Federal Government is without
any power whatever under the Constitution to put any type of burden
on speech and expression of ideas of any kind (as distinguished
from conduct), I agree with Part II of the dissent of my Brother
DOUGLAS in this case, and I would reverse Ginzburg's conviction on
this ground alone. Even assuming, however, that the Court is
correct in holding today that Congress does have power to clamp
official censorship on some subjects selected by the Court, in some
ways approved by it, I believe that the federal obscenity statute,
as enacted by Congress and as enforced by the Court against
Ginzburg in this case, should be held invalid on two other
Page 383 U. S. 477
Criminal punishment by government, although universally
recognized as a necessity in limited areas of conduct, is an
exercise of one of government's most awesome and dangerous powers.
Consequently, wise and good governments make all possible efforts
to hedge this dangerous power by restricting it within easily
identifiable boundaries. Experience, and wisdom flowing out of that
experience long ago led to the belief that agents of government
should not be vested with power and discretion to define and punish
as criminal past conduct which had not been clearly defined as a
crime in advance. To this end, at least in part, written laws came
into being marking the boundaries of conduct for which public
agents could thereafter impose punishment upon people. In contrast,
bad governments either wrote no general rules of conduct at all,
leaving that highly important task to the unbridled discretion of
government agents at the moment of trial, or sometimes, history
tells us, wrote their laws in an unknown tongue so that people
could not understand them or else placed their written laws at such
inaccessible spots that people could not read them. It seems to me
that these harsh expedients used by bad governments to punish
people for conduct not previously clearly marked as criminal are
being used here to put Mr. Ginzburg in prison for five years.
I agree with my Brother HARLAN that the Court has, in effect,
rewritten the federal obscenity statute, and thereby imposed on
Ginzburg standards and criteria that Congress never thought about;
or, if it did think about them, certainly it did not adopt them.
Consequently, Ginzburg is, as I see it, having his conviction and
sentence affirmed upon the basis of a statute amended by this Court
for violation of which amended statute he was not charged in the
courts below. Such an affirmance, we
Page 383 U. S. 478
have said, violates due process. Cole v. Arkansas,
333 U. S. 196
Compare Shuttlesworth v. Birmingham, 382 U. S.
. Quite apart from this vice in the affirmance,
however, I think that the criteria declared by a majority of the
Court today as guidelines for a court or jury to determine whether
Ginzburg or anyone else can be punished as a common criminal for
publishing or circulating obscene material are so vague and
meaningless that they practically leave the fate of a person
charged with violating censorship statutes to the unbridled
discretion, whim and caprice of the judge or jury which tries him.
I shall separately discuss the three elements which a majority of
the Court seems to consider material in proving obscenity.
(a) The first element considered necessary for determining
obscenity is that the dominant theme of the material, taken as a
whole, must appeal to the prurient interest in sex. It seems quite
apparent to me that human beings, serving either as judges or
Page 383 U. S. 479
not be expected to give any sort of decision on this element
which would even remotely promise any kind of uniformity in the
enforcement of this law. What conclusion an individual, be he judge
or juror, would reach about whether the material appeals to
"prurient interest in sex" would depend largely, in the long run,
not upon testimony of witnesses such as can be given in ordinary
criminal cases where conduct is under scrutiny, but would depend to
a large extent upon the judge's or juror's personality, habits,
inclinations, attitudes and other individual characteristics. In
one community or in one courthouse, a matter would be condemned as
obscene under this so-called criterion, but in another community,
maybe only a few miles away, or in another courthouse in the same
community, the material could be given a clean bill of health. In
the final analysis, the submission of such an issue as this to a
judge or jury amounts to practically nothing more than a request
for the judge or juror to assert his own personal beliefs about
whether the matter should be allowed to be legally distributed.
Upon this subjective determination the law becomes certain for the
first and last time.
(b) The second element for determining obscenity as it is
described by my Brother BRENNAN is that the material must be
"patently offensive because it affronts contemporary community
standards relating to the description or representation of sexual
matters. . . ."
Nothing that I see in any position adopted by a majority of the
Court today, and nothing that has been said in previous opinions
for the Court, leaves me with any kind of certainty as to whether
the "community standards" [Footnote
] referred to are worldwide, nationwide, section-wide,
Page 383 U. S. 480
country-wide, precinct-wide or township-wide. But even if some
definite areas were mentioned, who is capable of assessing
"community standards" on such a subject? Could one expect the same
application of standards by jurors in Mississippi as in New York
City, in Vermont as in California? So here again, the guilt or
innocence of a defendant charged with obscenity must depend, in the
final analysis, upon the personal judgment and attitudes of
particular individuals and the place where the trial is held. And
one must remember that the Federal Government has the power to try
a man for mailing obscene matter in a court 3,000 miles from his
(c) A third element which three of my Brethren think is required
to establish obscenity is that the material must be "utterly
without redeeming social value." This element seems to me to be as
uncertain, if not even more uncertain, than is the unknown
substance of the Milky Way. If we are to have a free society, as
contemplated by the Bill of Rights, then I can find little defense
for leaving the liberty of American individuals subject to the
judgment of a judge or jury as to whether material that provokes
thought or stimulates desire is "utterly without redeeming social
value. . . ." Whether a particular treatment of a particular
subject is with or without social value in this evolving, dynamic
society of ours is a question upon which no uniform agreement could
possibly be reached among politicians, statesmen, professors,
philosophers, scientists, religious groups or any other type of
group. A case-by-case assessment of social values by individual
judges and jurors is, I think, a dangerous technique for government
to utilize in determining whether a man stays in or out of the
My conclusion is that certainly, after the fourteen separate
opinions handed down in these three cases today, no person, not
even the most learned judge, much less a layman, is capable of
knowing in advance of an ultimate
Page 383 U. S. 481
decision in his particular case by this Court whether certain
material comes within the area of "obscenity" as that term is
confused by the Court today. For this reason, even if, as appears
from the result of the three cases today, this country is far along
the way to a censorship of the subjects about which the people can
talk or write, we need not commit further constitutional
transgressions by leaving people in the dark as to what literature
or what words or what symbols, if distributed through the mails,
make a man a criminal. As bad and obnoxious as I believe
governmental censorship is in a Nation that has accepted the First
Amendment as its basic ideal for freedom, I am compelled to say
that censorship that would stamp certain books and literature as
illegal in advance of publication or conviction would, in some
ways, be preferable to the unpredictable book-by-book censorship
into which we have now drifted.
I close this part of my dissent by saying once again that I
think the First Amendment forbids any kind or type or nature of
governmental censorship over views, as distinguished from
It is obvious that the effect of the Court's decisions in the
three obscenity cases handed down today is to make it exceedingly
dangerous for people to discuss, either orally or in writing,
anything about sex. Sex is a fact of life. Its pervasive influence
is felt throughout the world, and it cannot be ignored. Like all
other facts of life, it can lead to difficulty and trouble, and
sorrow and pain. But while it may lead to abuses, and has in many
instances, no words need be spoken in order for people to know that
the subject is one pleasantly interwoven in all human activities,
and involves the very substance of the creation of life itself. It
is a subject which people are bound to consider and discuss
whatever laws are passed
Page 383 U. S. 482
by any government to try to suppress it. Though I do not suggest
any way to solve the problems that may arise from sex or
discussions about sex, of one thing I am confident, and that is
that federal censorship is not the answer to these problems. I find
it difficult to see how talk about sex can be placed under the kind
of censorship the Court here approves without subjecting our
society to more dangers than we can anticipate at the moment. It
was to avoid exactly such dangers that the First Amendment was
written and adopted. For myself, I would follow the course which I
believe is required by the First Amendment, that is, recognize that
sex, at least as much as any other aspect of life, is so much a
part of our society that its discussion should not be made a
I would reverse this case.
No. 49, Mishkin v. New York, post,
383 U. S. 502
No. 368, Memoirs v. Massachusetts, ante,
p. 383 U. S. 413
As I understand all of the opinions in this case and the two
related cases decided today, three things must be proven to
establish material as obscene. In brief, these are (1) the material
must appeal to the prurient interest, (2) it must be patently
offensive, and (3) it must have no redeeming social value. MR.
JUSTICE BRENNAN, in his opinion in Memoirs v. Massachusetts,
p. 383 U. S. 413
which is joined by THE CHIEF JUSTICE and MR. JUSTICE FORTAS, is of
the opinion that all three of these elements must coalesce before
material can be labeled obscene. MR. JUSTICE CLARK, in a dissenting
opinion in Memoirs,
indicates, however, that proof of the
first two elements alone is enough to show obscenity, and that
proof of the third -- the material must be utterly without
redeeming social value -- is only an aid in proving the first two.
In his dissenting opinion in Memoirs,
MR. JUSTICE WHITE
states that material is obscene "if its predominant theme appeals
to the prurient interest in a manner exceeding customary limits of
candor." In the same opinion, MR. JUSTICE WHITE states that the
social importance test "is relevant only to determining the
predominant prurient interest of the material."
the opinion of MR. JUSTICE BRENNAN, concurred in by
Mr. Justice Goldberg in Jacobellis v. Ohio, 378 U.
, but compare
the dissent in that case of
THE CHIEF JUSTICE, joined by MR. JUSTICE CLARK, at 378 U. S.
MR. JUSTICE DOUGLAS, dissenting.
Today's condemnation of the use of sex symbols to sell
literature engrafts another exception on First Amendment rights
that is as unwarranted as the judge-made exception concerning
obscenity. This new exception condemns an advertising technique as
old as history. The advertisements of our best magazines are
chock-full of thighs, ankles, calves, bosoms, eyes, and hair, to
draw the potential buyer's attention to lotions, tires, food,
liquor, clothing, autos, and even insurance policies. The sexy
advertisement neither adds to nor detracts from the quality of the
merchandise being offered for sale. And I do not see how it adds to
or detracts one whit from the legality of the book being
distributed. A book should stand on its own, irrespective of the
reasons why it was written or the wiles used in selling it. I
cannot imagine any promotional effort that would make chapters 7
and 8 of the Song of Solomon any the less
Page 383 U. S. 483
or any more worthy of First Amendment protection than does their
unostentatious inclusion in the average edition of the Bible.
The Court has, in a variety of contexts, insisted that
preservation of rights safeguarded by the First Amendment requires
vigilance. We have recognized that a
"criminal prosecution under a statute regulating expression
usually involves imponderables and contingencies that themselves
may inhibit the full exercise of First Amendment freedoms."
Dombrowski v. Pfister, 380 U.
, 380 U. S. 486
Where uncertainty is the distinguishing characteristic of a legal
principle -- in this case, the Court's "pandering" theory -- "the
free dissemination of ideas may be the loser." Smith v.
California, 361 U. S. 147
361 U. S. 151
The Court today, however, takes the other course, despite the
admonition in Speiser v. Randall, 357 U.
, 357 U. S. 525
that "[t]he separation of legitimate from illegitimate speech calls
for . . . sensitive tools." Before today, due regard for the
frailties of free expression led us to reject insensitive
procedures [Footnote 3/1
clumsy, vague, or overbroad substantive rules even in the realm of
obscenity. [Footnote 3/2
] For, as
the Court emphasized in Roth v. United States,
354 U. S. 476
354 U. S.
"[t]he door barring federal and state intrusion into this area
cannot be left ajar; it must be kept tightly closed and opened only
the slightest crack necessary to prevent encroachment upon more
Certainly, without the aura of sex in the promotion of these
publications, their contents cannot be said to be
Page 383 U. S. 484
"utterly without redeeming social importance." Roth v.
United States, supra,
at 354 U. S. 484
] One of the
publications condemned today is the Housewife's Handbook on
Selective Promiscuity, which a number of doctors and psychiatrists
thought had clinical value. One clinical psychologist said:
"I should like to recommend it, for example, to the people in my
church to read, especially those who are having marital
difficulties, in order to increase their tolerance and
understanding for one another. Much of the book, I should think,
would be very suitable reading for teenage people, especially
teenage young women who could empathize strongly with the growing
up period that Mrs. Rey [Anthony] relates, and could read on and be
disabused of some of the unrealistic notions about marriage and
sexual experiences. I should think this would make very good
reading for the average man to help him gain a better appreciation
of female sexuality."
The Rev. George Von Hilsheimer III, a Baptist minister,
] testified that he
has used the book "insistently in
Page 383 U. S. 485
my pastoral counseling and in my formal psychological
"The book is a history, a very unhappy history, of a series of
sexual and psychological misadventures and the encounter of a quite
typical and average American woman with quite typical and average
American men. The fact that the book itself is the history of a
woman who has had sexual adventures outside the normally accepted
bounds of marriage, which, of course, for most Americans today, is
a sort of serial polygamy, it does not teach or advocate this, but
gives the women to whom I give the book at least a sense that their
own experiences are not unusual, that their sexual failures are not
unusual, and that they themselves should not be guilty because they
are, what they say, sexual failures."
I would think the Baptist minister's evaluation would be enough
to satisfy the Court's test, unless the censor's word is to be
final or unless the experts are to be weighed in the censor's
scales, in which event, one Anthony Comstock would too often prove
more weighty than a dozen more detached scholars, or unless we, the
ultimate Board of Censors, are to lay down standards for review
that give the censor the benefit of the "any evidence" rule or the
"substantial evidence" rule as in the administrative law field.
Cf. Universal Camera Corp. v. Labor Board, 340 U.
. Or perhaps we mean to let the courts sift and
choose among conflicting versions of the "redeeming social
importance" of a particular book, making sure that they keep their
findings clear of doubt lest we reverse, as
Page 383 U. S. 486
we do today in Memoirs v. Massachusetts, ante,
383 U. S. 413
because the lower court, in an effort to be fair, showed how
two-sided the argument was, since the test is whether the
publication is "utterly without redeeming social importance," then
I think we should honor the opinion of the Baptist minister who
testified as an expert in the field of counseling.
Then there is the newsletter Liaison.
One of the
defendants' own witnesses, critic Dwight Macdonald, testified that,
while, in his opinion, it did not go beyond the customary limits of
candor tolerated by the community, it was "an extremely tasteless,
vulgar and repulsive issue." This may, perhaps, overstate the case,
is admittedly little more than a collection of
"dirty" jokes and poems, with the possible exception of an
interview with Dr. Albert Ellis. As to this material, I find wisdom
in the words of the late Judge Jerome Frank:
"Those whose views most judges know best are other lawyers.
Judges can and should take judicial notice that, at many gatherings
of lawyers at Bar Association or of alumni of our leading law
schools, tales are told fully as 'obscene' as many of those
distributed by men . . . convicted for violation of the obscenity
statute. . . . "
"One thinks of the lyrics sung . . . by a certain respected and
conservative member of the faculty of a great law school which
considers itself the most distinguished and which is the Alma Mater
of many judges sitting on upper courts. [Footnote 3/5
appeal is neither literary nor spiritual. But
neither is its appeal to a "shameful or morbid interest in nudity,
sex, or excretion." The appeal is to the ribald
Page 383 U. S. 487
sense of humor which is -- for better or worse -- a part of our
culture. A mature society would not suppress this newsletter as
obscene, but would simply ignore it.
Then there is EROS. The Court affirms the judgment of the lower
court, which found only four of the many articles and essays to be
obscene. One of the four articles consisted of numerous ribald
limericks, to which the views expressed as to Liaison
would apply with equal force. Another was a photo essay entitled
"Black and White in Color" which dealt with interracial love: a
subject undoubtedly offensive to some members of our society.
Critic Dwight Macdonald testified:
"I suppose if you object to the idea of a Negro and a white
person having sex together, then, of course, you would be horrified
by it. I don't. From the artistic point of view, I thought it was
very good. In fact, I thought it was done with great taste, and I
don't know how to say it -- I never heard of him before, but he is
obviously an extremely competent and accomplished
Another defense witness, Professor Horst W. Janson, presently
the Chairman of the Fine Arts Department at New York University,
"I think they are outstandingly beautiful and artistic
photographs. I cannot imagine the theme being treated in a more
lyrical and delicate manner than it has been done here."
"* * * *"
"I might add here that, of course, photography in appropriate
hands is an artistic instrument, and this particular photographer
has shown a very great awareness of compositional devices and
patterns that have a long and well established history in western
"* * * *
Page 383 U. S.
"The very contrast in the color of the two bodies, of course,
has presented him with certain opportunities that he would not have
had with two models of the same color, and he has taken rather
extraordinary and very delicate advantage of these contrasts."
The third article found specifically by the trial judge to be
obscene was a discussion by Drs. Eberhard W. and Phyllis C.
Kronhausen of erotic writing by women, with illustrative
quotations. [Footnote 3/6
worth of the article was discussed by Dwight Macdonald, who
"I thought [this was] an extremely interesting and important
study, with some remarkable quotations from the woman who had put
down her sense of lovemaking, of sexual intercourse . . . in an
extremely eloquent way. I have never seen this from the woman's
point of view. I thought the point they made, the difference
between the man's and the woman's approach to sexual intercourse
was very well made, and very important."
Still another article found obscene was a short introduction to,
and a lengthy excerpt from, My Life and Loves, by Frank Harris,
about which there is little in the record. Suffice it to say that
this seems to be a book of some literary stature. At least I find
it difficult, on this record, to say that it is "utterly without
redeeming social importance." [Footnote
Page 383 U. S. 489
Some of the tracts for which these publishers go to prison
concern normal sex, some homosexuality, some the masochistic
yearning that is probably present in everyone and dominant in some.
Masochism is a desire to be punished or subdued. In the broad frame
of reference, the desire may be expressed in the longing to be
whipped and lashed, bound and gagged, and cruelly treated.
] Why is it unlawful
to cater to the needs of this group? They are, to be sure, somewhat
off-beat, nonconformist, and odd. But we are not in the realm of
criminal conduct, only ideas and tastes. Some like Chopin, others
like "rock and roll." Some are "normal," some are masochistic, some
deviant in other respects, such as the homosexual. Another group
also represented here translates mundane articles into sexual
symbols. This group, like those embracing masochism, are anathema
to the so-called stable majority. But why is freedom of the press
and expression denied them? Are they to be barred from
communicating in symbolisms important to them? When the Court today
speaks of "social value," does it mean a "value" to the majority?
Why is not a minority "value" cognizable? The masochistic group is
one; the deviant group is another. Is it not important that members
of those groups communicate with each other? Why is communication
by the "written word" forbidden? If we were wise enough, we might
know that communication may have greater therapeutical value than
any sermon that those of the "normal" community can ever offer. But
if the communication is of value to the masochistic community or to
others of the deviant community, how can it be said to be
Page 383 U. S. 490
without redeeming social importance"? "Redeeming" to whom?
"Importance" to whom?
We took quite a different stance in One, Inc. v.
Olesen, 355 U. S. 371
where we unanimously reversed the decision of the Court of Appeals
in 241 F.2d 772 without opinion. Our holding was accurately
described by Lockhart and McClure, Obscenity Censorship: The Core
Constitutional Issue -- What Is Obscene? 7 Utah L.Rev. 289, 293
"[This] was a magazine for homosexuals entitled One -- The
which was definitely not a scientific or
critical magazine, but appears to have been written to appeal to
the tastes and interests of homosexuals. [Footnote 3/9
Page 383 U. S. 491
Man was not made in a fixed mould. If a publication caters to
the idiosyncrasies of a minority, why does it not have some "social
importance"? Each of us is a very temporary transient, with likes
and dislikes that cover the spectrum. However pleblian my tastes
may be, who am I to say that others' tastes must be so limited, and
that other tastes have no "social importance"? How can we know
enough to probe the mysteries of the subconscious of our people and
say that this is good for them, and that is not? Catering to the
most eccentric taste may have "social importance" in giving that
minority an opportunity to express itself, rather than to repress
its inner desires, as I suggest in my separate opinion in
Memoirs v. Massachusetts, ante
at 383 U. S.
-432. How can we know that this expression may not
I find it difficult to say that a publication has no "social
importance" because it caters to the taste of the most unorthodox
amongst us. We members of this Court should be among the last to
say what should be orthodox in literature. An omniscience would be
required which few in our whole society possess.
This leads me to the conclusion, previously noted, that the
First Amendment allows all ideas to be expressed -- whether
orthodox, popular, off-beat, or repulsive. I do not think it
permissible to draw lines between
Page 383 U. S. 492
the "good" and the "bad" and be true to the constitutional
mandate to let all ideas alone. If our Constitution permitted
"reasonable" regulation of freedom of expression, as do the
constitutions of some nations, [Footnote 3/10
] we would be in a field where the
legislative and the judiciary would have much leeway. But, under
our charter, all regulation or control of expression is barred.
Government does not sit to reveal where the "truth" is. People are
left to pick and choose between competing offerings. There is no
compulsion to take and read what is repulsive, any more than there
is to spend one's time poring over government bulletins, political
tracts, or theological treatises. The theory is that people are
mature enough to pick and choose, to recognize trash when they see
it, to be attracted to the literature that satisfies their deepest
need, and, hopefully, to move from plateau to plateau and finally
reach the world of enduring ideas.
I think this is the ideal of the Free Society written into our
Constitution. We have no business acting as censors or endowing any
group with censorship powers. It is shocking to me for us to send
to prison anyone for publishing anything, especially tracts so
distant from any incitement to action as the ones before us.
[This opinion applies also to Mishkin v. New York,
p. 383 U. S.
Page 383 U. S. 493
Marcus v. Search Warrant, 367 U.
; A Quantity of Books v. Kansas,
378 U. S. 205
Freedman v. Maryland, 380 U. S. 51
Butler v. Michigan, 352 U. S. 380
Smith v. California, 361 U. S. 147
Manual Enterprises, Inc. v. Day, 370 U.
(opinion of HARLAN, J.).
The Court's premise is that Ginzburg represented that his
publications would be sexually arousing. The Court, however,
recognized in Roth:
"[S]ex and obscenity are not synonymous. Obscene material is
material which deals with sex in a manner appealing to
interest . . . i.e.,
a shameful or
morbid interest in nudity, sex, or excretion. . . ."
Id. 354 U. S. 487
and n. 20 (emphasis added). The advertisements for these
publications, which the majority quotes (ante
383 U. S.
-469, n. 9), promised candor in the treatment of
matters pertaining to sex, and at the same time proclaimed that
they were artistic or otherwise socially valuable. In effect, then,
these advertisements represented that the publications are
Rev. Von Hilsheimer obtained an A.B. at the University of Miami
in 1951. He did graduate work in psychology, and studied analysis
and training therapy. Thereafter, he did graduate work as a
theological student, and received a degree as a Doctor of Divinity
from the University of Chicago in 1957. He had extensive experience
as a group counselor, lecturer, and family counselor. He was a
consultant to President Kennedy's Study Group on National Voluntary
Services, and a member of the board of directors of Mobilization
United States v. Roth,
237 F.2d 796, 822 and n. 58
The Kronhausens wrote Pornography and the Law (1959).
The extensive literary comment which the book's publication
generated demonstrates that it is not "utterly without redeeming
social importance." See, e.g.,
New York Review of Books,
p. 6 (Jan. 9, 1964); New Yorker, pp. 79-80 (Jan. 4, 1964); Library
Journal, pp. 4743-4744 (Dec. 15, 1963); New York Times Book Review,
p. 10 (Nov. 10, 1963); Time, pp. 102-104 (Nov. 8, 1963); Newsweek,
pp. 98-100 (Oct. 28, 1963); New Republic, pp. 23-27 (Dec. 28,
Krafft-Ebing, Psychopathia Sexualis, p. 89 et
(1893); Eisler, Man Into Wolf, p. 23 et seq.
(1951); Stekel, Sadism and Masochism (1929) passim;
Bergler, Principles of Self-Damage (1959) passim;
Masochism in Modern Man (1941) passim.
The Court of Appeals summarized the contents as follows:
"The article 'Sappho Remembered' is the story of a lesbian's
influence on a young girl only twenty years of age but 'actually
nearer sixteen in many essential ways of maturity,' in her struggle
to choose between a life with the lesbian or a normal married life
with her childhood sweetheart. The lesbian's affair with her
roommate while in college, resulting in the lesbian's expulsion
from college, is recounted to bring in the jealousy angle. The
climax is reached when the young girl gives up her chance for a
normal married life to live with the lesbian. This article is
nothing more than cheap pornography calculated to promote
lesbianism. It falls far short of dealing with homosexuality from
the scientific, historical and critical point of view."
"The poem 'Lord Samuel and Lord Montagu' is about the alleged
homosexual activities of Lord Montagu and other British Peers, and
contains a warning to all males to avoid the public toilets while
Lord Samuel is 'sniffing round the drains' of Piccadilly (London).
. . ."
"* * * *"
"The stories 'All This and Heaven Too,' and 'Not Til the End,'
pages 32-36, are similar to the story 'Sappho Remembered,' except
that they relate to the activities of the homosexuals, rather than
241 F.2d 772, 777, 778.
There are other decisions of ours which also reversed judgments
condemning publications catering to a wider range of literary
tastes than we seem to tolerate today. See, e.g., Mounce v.
United States, 355 U. S. 180
vacating and remanding 247 F.2d 148 (nudist magazines);
Sunshine Book Co. v. Summerfield, 355 U.
, reversing 101 U.S.App.D.C. 358, 249 F.2d 114
(nudist magazine); Tralins v. Gerstein, 378 U.
, reversing 151 So. & 19 (book titled
"Pleasure Was My Business" depicting the happenings in a house of
prostitution); Grove Press v. Gerstein, 378 U.
, reversing 156 So. 2d 537 (book titled "Tropic of
Cancer" by Henry Miller).
Constitution of the Union of Burma, Art.
17(i) reprinted in I Peaslee, Constitutions of Nations, p 281 (2d
ed.1956); Constitution of India, Art. 19(2), II Peaslee, op.
p. 227; Constitution of Ireland, Art. 40(6)(1)(i),
II Peaslee, op. cit. supra,
p. 458; Federal Constitution
of the Swiss Confederation Art. 55, III Peaslee, op. cit.
p. 344; Constitution of Libya Art. 22, I Peaslee,
Constitutions of Nations, p. 438 (3d ed.1965) Constitution of
Nigeria, Art. 25(2), id.
p. 605; Constitution of Zambia,
Art. 22(2), id.
MR. JUSTICE HARLAN, dissenting.
I would reverse the convictions of Ginzburg and his three
corporate codefendants. The federal obscenity statute under which
they were convicted, 18 U.S.C. § 1461 (1964 ed.), is concerned with
unlawful shipment of "nonmailable" matter. In my opinion announcing
the judgment of the Court in Manual Enterprises, Inc. v.
Day, 370 U. S. 478
background of the statute was assessed, and its focus was seen to
be solely on the character of the material in question. That too
has been the premise on which past cases in this Court arising
under this statute, or its predecessors, have been decided.
See, e.g., Roth v. United States, 354 U.
. I believe that, under this statute, the Federal
Government is constitutionally restricted to banning from the mails
only "hard-core pornography," see
my separate opinion in
at 354 U. S. 507
and my dissenting opinion in A Book Named "John Cleland's
Memoirs" v. Attorney General of Massachusetts, ante,
383 U. S. 455
Because I do not think it can be maintained that the material in
question here falls within that narrow class, I do not believe it
can be excluded from the mails.
The Court recognizes the difficulty of justifying these
convictions; the majority refuses to approve the trial judge's
"exegesis of Roth
" (note 3, ante,
p. 383 U. S.
); it declines to approve the trial court's
"characterizations" of the Handbook
"setting" which the majority for the first time announces to be
crucial to this conviction (note 5, ante,
Moreover, the Court accepts the Government's concession that the
Handbook has a certain "worth" when seen in something labeled a
"controlled, or even neutral, environment" (ante,
383 U. S.
); the majority notes that these are "publications
which we have assumed . . . cannot themselves be adjudged obscene
in the abstract" (ante,
p. 383 U. S.
). In fact, the Court, in the last analysis, sustains
the convictions on the
Page 383 U. S. 494
express assumption that the items held to be obscene are not,
viewing them strictly, obscene at all (ante,
383 U. S.
This curious result is reached through the elaboration of a
theory of obscenity entirely unrelated to the language, purposes,
or history of the federal statute now being applied, and certainly
different from the test used by the trial court to convict the
defendants. While the precise holding of the Court is obscure, I
take it that the objective test of Roth,
focuses on the material in question, is to be supplemented by
another test that goes to the question whether the mailer's aim is
to "pander" to or "titillate" those to whom he mails questionable
Although it is not clear whether the majority views the panderer
test as a statutory gloss or as constitutional doctrine, I read the
opinion to be in the latter category. [Footnote 4/1
] The First Amendment, in the obscenity
area, no longer fully protects material on its face nonobscene, for
such material must now also be examined in the light of the
defendant's conduct, attitude, motives. This seems to me a mere
euphemism for allowing punishment of a person who mails otherwise
constitutionally protected material just because a jury or a judge
may not find him or his business agreeable. Were a State to enact a
"panderer" statute under its police power, I have little doubt that
-- subject to clear drafting to avoid attacks on vagueness and
equal protection grounds -- such a statute would be constitutional.
Possibly the same might be true of the Federal Government, acting
under its postal or commerce powers. What I fear the Court has done
today is in effect to write a new statute, but without the sharply
focused definitions and standards necessary in such a sensitive
area. Casting such a dubious gloss over a
Page 383 U. S. 495
straightforward 101-year-old statute (see
13 Stat. 507)
is, for me, an astonishing piece of judicial improvisation.
It seems perfectly clear that the theory or which these
convictions are now sustained is quite different from the basis on
which the case was tried and decided by the District Court and
affirmed by the Court of Appeals. [Footnote 4/2
] The District Court found the Handbook
"patently offensive on its face," and without "the slightest
redeeming social, artistic, or literary importance or value"; it
held that there was
"no credible evidence that The Handbook has the slightest valid
scientific importance for treatment of individuals in clinical
psychiatry, psychology, or any field of medicine."
, 131. The trial court made similar findings as to
Eros and Liaison. The majority's opinion, as I read it, casts
doubts upon these explicit findings. As to the Handbook, the Court
interprets an off-hand remark by the government prosecutor at the
sentencing hearing as a "concession," which the majority accepts,
that the prosecution rested upon the conduct of the petitioner, and
the Court explicitly refuses to accept the trial judge's
"characterizations" of the book, which I take to be an implied
rejection of the findings of fact upon which the conviction was, in
fact, based (note 5, ante,
p. 383 U. S.
). Similarly, as to Eros, the Court implies that the
finding of obscenity might be "erroneous" were it not supported "by
the evidence of pandering" (ante,
p. 383 U. S.
). The Court further characterizes the Eros decision,
aside from pandering, as "an otherwise debatable conclusion"
p. 383 U. S.
If there is anything to this new pandering dimension to the
mailing statute, the Court should return the case
Page 383 U. S. 496
for a new trial, for petitioners are at least entitled to a day
in court on the question on which their guilt has ultimately come
to depend. Compare
the action of the Court in Memoirs
v. Massachusetts, ante,
p. 383 U. S. 413
also decided today, where the Court affords the State an
opportunity to prove in a subsequent prosecution that an accused
purveyor of Fanny Hill,
in fact, used pandering methods to
secure distribution of the book.
If a new trial were given in the present case, as I read the
Court's opinion, the burden would be on the Government to show that
the motives of the defendants were to pander to "the widespread
weakness for titillation by pornography" (ante,
383 U. S.
). I suppose that an analysis of the type of
individuals receiving Eros and the Handbook would be relevant. If
they were ordinary people, interested in purchasing Eros or the
Handbook for one of a dozen personal reasons, this might be some
evidence of pandering to the general public. On the other hand, as
the Court suggests, the defendants could exonerate themselves by
showing that they sent these works only, or perhaps primarily (no
standards are set), to psychiatrists and other serious-minded
professional people. Also relevant would apparently be the nature
of the mailer's advertisements or representations. Conceivably,
someone mailing to the public selective portions of a recognized
classic with the avowed purpose of titillation would run the risk
of conviction for mailing nonmailable matter. Presumably, the Post
Office, under this theory, might once again attempt to ban Lady
Chatterley's Lover, which a lower court found not bannable in 1960
by an abstract application of Roth. Grove Press, Inc.
276 F.2d 433. I would suppose that, if the
Government could show that Grove Press is pandering to people who
are interested in the book's sexual passages, and not in D. H.
Lawrence's social theories or literary technique, § 1461 could
Page 383 U. S. 497
invoked. Even the well known opinions of Judge A. N. Hand in
United States v. One Book Entitled Ulysses,
72 F.2d 705,
and of Judge Woolsey in the District Court, 5 F.
, might be rendered nugatory if a mailer of Ulysses is
found to be titillating readers with its "coarse, blasphemous, and
obscene" portions, 72 F.2d at 707, rather than piloting them
through the intricacies of Joyce's stream of consciousness.
In the past, as in the trial of these petitioners, evidence as
to a defendant's conduct was admissible only to show relevant
intent. [Footnote 4/3
evidence not only as to conduct, but also as to attitude and
motive, is admissible on the primary question of whether the
material mailed is obscene. I have difficulty seeing how these
inquiries are logically related to the question whether a
particular work is obscene. In addition, I think such a test for
obscenity is impermissibly vague, and unwarranted by anything in
the First Amendment or in 18 U.S.C. § 1461.
I would reverse the judgments below.
The prevailing opinion in Memoirs v. Massachusetts,
p. 383 U. S. 413
makes clearer the constitutional ramifications of this new
Although, at one point in its opinion ,the Court of Appeals
referred to "the shoddy business of pandering," 338 F.2d 12, 15, a
reading of the opinion as a whole plainly indicates that the Court
of Appeals did not affirm these convictions on the basis on which
this Court now sustains them.
To show pandering, the Court relies heavily on the fact that the
defendants sought mailing privileges from the postmasters of
Intercourse and Blue Ball, Pennsylvania, before settling upon
Middlesex, New Jersey, as a mailing point (ante,
383 U. S.
-468). This evidence was admitted, however, only to
show required scienter, see
338 F.2d 12, 16. On appeal to
the Court of Appeals and to this Court, petitioner Ginzburg
asserted that, at most, the evidence shows the intent of petitioner
Eros Magazine, Inc., and was erroneously used against him. The
Court of Appeals held the point de minimis,
338 F.2d at
16-17, on the ground that the parties had stipulated the necessary
intent. The United States, in its brief in this Court, likewise
viewed this evidence as relating solely to scienter;
nowhere did the United States attempt to sustain these convictions
on anything like a pandering theory.
MR. JUSTICE STEWART, dissenting.
Ralph Ginzburg has been sentenced to five years in prison for
sending through the mail copies of a magazine,
Page 383 U. S. 498
a pamphlet, and a book. There was testimony at his trial that
these publications possess artistic and social merit. Personally, I
have a hard time discerning any. Most of the material strikes me as
both vulgar and unedifying. But, if the First Amendment means
anything, it means that a man cannot be sent to prison merely for
distributing publications which offend a judge's esthetic
sensibilities, mine or any other's.
Censorship reflects a society's lack of confidence in itself. It
is a hallmark of an authoritarian regime. Long ago, those who wrote
our First Amendment charted a different course. They believed a
society can be truly strong only when it is truly free. In the
realm of expression, they put their faith, for better or for worse,
in the enlightened choice of the people, free from the interference
of a policeman's intrusive thumb or a judge's heavy hand. So it is
that the Constitution protects coarse expression as well as
refined, and vulgarity no less than elegance. A book worthless to
me may convey something of value to my neighbor. In the free
society to which our Constitution has committed us, it is for each
to choose for himself. [Footnote
Because such is the mandate of our Constitution, there is room
for only the most restricted view of this Court's decision in
Roth v. United States, 354 U. S. 476
that case, the Court held that "obscenity is not within the area of
constitutionally protected speech or press."
Page 383 U. S. 499
at 354 U. S. 485
The Court there characterized obscenity as that which is "utterly
without redeeming social importance," id.
at 354 U. S. 484
"deals with sex in a manner appealing to prurient interest,"
at 354 U. S. 487
and "goes substantially beyond customary limits of candor in
description or representation of such matters." Id.
354 U. S. 487
n. 20. [Footnote 5/2
] In Manual
Enterprises v. Day, 370 U. S. 478
joined MR. JUSTICE HARLAN's opinion adding "patent indecency" as a
further essential element of that which is not constitutionally
There does exist a distinct and easily identifiable class of
material in which all of these elements coalesce. It is that, and
that alone, which I think government may constitutionally suppress,
whether by criminal or civil sanctions. I have referred to such
material before as hard-core pornography, without trying further to
define it. Jacobellis v. Ohio, 378 U.
, at 378 U. S. 197
(concurring opinion). In order to prevent any possible
misunderstanding, I have set out in the margin a description,
borrowed from the Solicitor General's brief, of the kind of thing
to which I have reference. [Footnote
] See also
Page 383 U. S. 500
McClure, Censorship of Obscenity: The Developing Constitutional
Standards, 45 Minn.L.Rev. 5, 63-64.
Although arguments can be made to the contrary, I accept the
proposition that the general dissemination of matter of this
description may be suppressed under valid laws. [Footnote 5/4
] That has long been the almost
universal judgment of our society. See Roth v. United
354 U.S. at 354 U. S. 485
But material of this sort is wholly different from the publications
mailed by Ginzburg in the present case, and different not in
degree, but in kind.
The Court today appears to concede that the materials Ginzburg
mailed were themselves protected by the First Amendment. But, the
Court says, Ginzburg can still be sentenced to five years in prison
for mailing them. Why? Because, says the Court, he was guilty of
"commercial exploitation," of "pandering," and of "titillation."
But Ginzburg was not charged with "commercial exploitation"; he was
not charged with "pandering"; he was not charged with
"titillation." Therefore, to affirm his conviction now on any of
those grounds, even if otherwise valid, is to deny him due process
of law. Cole v. Arkansas, 333 U.
. But those grounds are not, of course, otherwise
valid. Neither the statute under which Ginzburg was convicted nor
any other federal statute I know of makes "commercial exploitation"
or "pandering" or "titillation" a criminal offense. And any
criminal law that sought to do so in the terms so elusively defined
by the Court would, of course, be unconstitutionally vague, and
therefore void. All of these matters are developed in the
dissenting opinions of my Brethren, and I simply note here that I
fully agree with them.
Page 383 U. S. 501
For me, however, there is another aspect of the Court's opinion
in this case that is even more regrettable. Today the Court assumes
the power to deny Ralph Ginzburg the protection of the First
Amendment because it disapproves of his "sordid business." That is
a power the Court does not possess. For the First Amendment
protects us all with an even hand. It applies to Ralph Ginzburg
with no less completeness and force than to G. P. Putnam's Sons.
] In upholding and
enforcing the Bill of Rights, this Court has no power to pick or to
choose. When we lose sight of that fixed star of constitutional
adjudication, we lose our way. For then we forsake a government of
law, and are left with government by Big Brother.
Different constitutional questions would arise in a case
involving an assault upon individual privacy by publication in a
manner so blatant or obtrusive as to make it difficult or
impossible for an unwilling individual to avoid exposure to it.
Cf., e.g., Breard v. Alexandria, 341 U.
; Public Utilities Commission of the District
of Columbia v. Pollak, 343 U. S. 451
Griswold v. Connecticut, 381 U. S. 479
Still other considerations might come into play with respect to
laws limited in their effect to those deemed insufficiently adult
to make an informed choice. No such issues were tendered in this
It is not accurate to say that the Roth opinion "fashioned
standards" for obscenity, because, as the Court explicitly stated,
no issue was there presented as to the obscenity of the material
involved. 354 U.S. at 354 U. S. 481
n. 8. And in no subsequent case has a majority of the Court been
able to agree on any such "standards."
". . . Such materials include photographs, both still and motion
picture, with no pretense of artistic value, graphically depicting
acts of sexual intercourse, including various acts of sodomy and
sadism, and sometimes involving several participants in scenes of
orgy-like character. They also include strips of drawings in
comic-book format grossly depicting similar activities in an
exaggerated fashion. There are, in addition, pamphlets and
booklets, sometimes with photographic illustrations, verbally
describing such activities in a bizarre manner with no attempt
whatsoever to afford portrayals of character or situation and with
no pretense to literary value. All of this material . . . cannot
conceivably be characterized as embodying communication of ideas or
artistic values inviolate under the First Amendment. . . ."
During oral argument, we were advised by government counsel that
the vast majority of prosecutions under this statute involve
material of this nature. Such prosecutions usually result in guilty
pleas, and never come to this Court.
See Memoirs v. Massachusetts, ante,
p. 383 U. S. 413