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� or 15� per copy, depending on whether it was a "thick" or
"thin" book. The printer was instructed by appellant not to use
appellant's name as publisher, but to print some fictitious
Page 383 U. S. 506
name on each book, to "make up any name and address." Appellant
stored books on the printer's premises and paid part of the
printer's rent for the storage space. The printer filled orders for
the books, at appellant's direction, delivering them to appellant's
retail store, Publishers' Outlet, and, on occasion, shipping books
to other places. Appellant paid the authors, artists, and printer
cash for their services, usually at his bookstore.
I
Appellant attacks § 1141 as invalid on its face, contending that
it exceeds First Amendment limitations by proscribing publications
that are merely sadistic or masochistic, that the terms "sadistic"
and "masochistic" are impermissibly vague, and that the term
"obscene" is also impermissibly vague. We need not decide the
merits of the first two contentions, for the New York courts held
in this case that the terms "sadistic" and "masochistic," as well
as the other adjectives used in § 1141 to describe proscribed
books, are "synonymous with
obscene.'" 26 Misc.2d at 154, 207
N.Y.S.2d at 393. The contention that the term "obscene" is also
impermissibly vague fails under our holding in Roth v. United
States, 354 U. S. 476,
354 U. S.
491-492. Indeed, the definition of "obscene" adopted by
the New York courts in interpreting § 1141 delimits a narrower
class of conduct than that delimited under the Roth definition,
People v. Richmond County News, Inc., 9 N.Y.2d 578,
586-587, 216 N.Y.S.2d 369, 175 N.E.2d 681, 685-686 (1961),
[Footnote 4] and thus § 1141,
like the statutes in
Page 383 U. S. 507
Roth, provides reasonably ascertainable standards of
guilt. [
Footnote 5]
Appellant also objects that § 1141 is invalid as applied, first,
because the books he was convicted of publishing, hiring others to
prepare, and possessing for sale are not obscene, and second,
because the proof of
scienter is inadequate.
1.
The Nature of the Material. -- The First Amendment
prohibits criminal prosecution for the publication and
dissemination of allegedly obscene books that do not satisfy the
Roth definition of obscenity. States are free to adopt
other definitions of obscenity only to the extent that those
adopted stay within the bounds set by the constitutional criteria
of the
Roth definition, which
Page 383 U. S. 508
restrict the regulation of the publication and sale of the books
to that traditionally and universally tolerated in our society.
The New York courts have interpreted obscenity in § 1141 to
cover only so-called "hard-core pornography,"
see People v.
Richmond County News, Inc., 9 N.Y.2d 578, 586-587, 216
N.Y.S.2d 369, 175 N.E.2d 681, 685-686 (1961), quoted in
note 4 supra. Since that
definition of obscenity is more stringent than the
Roth
definition, the judgment that the constitutional criteria are
satisfied is implicit in the application of § 1141 below. Indeed,
appellant's sole contention regarding the nature of the material is
that some of the books involved in this prosecution, [
Footnote 6] those depicting various deviant
sexual practices, such as flagellation, fetishism, and lesbianism,
do not satisfy the prurient appeal requirement because they do not
appeal to a prurient interest of the "average person" in sex, that,
"instead of stimulating the erotic, they disgust and sicken." We
reject this argument as being founded on an unrealistic
interpretation of the prurient appeal requirement.
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. The reference to the "average" or "normal" person in
Roth, 354 U.S. at
354 U. S. 489-490, does not foreclose this holding.
[
Footnote 7] In regard to the
prurient appeal requirement, the
Page 383 U. S. 509
concept of the "average" or "normal" person was employed in
Roth to serve the essentially negative purpose of
expressing our rejection of that aspect of the
Hicklin
test,
Regina v. Hicklin, [1868] L.R. 3 Q.B. 360, that made
the impact on the most susceptible person determinative. We adjust
the prurient appeal requirement to social realities by permitting
the appeal of this type of material to be assessed in terms of the
sexual interests of its intended and probable recipient group; and
since our holding requires that the recipient group be defined with
more specificity than in terms of sexually immature persons,
[
Footnote 8] it also avoids the
inadequacy of the most susceptible person facet of the
Hicklin test.
No substantial claim is made that the books depicting sexually
deviant practices are devoid of prurient appeal to sexually deviant
groups. The evidence fully establishes that these books were
specifically conceived and marketed for such groups. Appellant
instructed his authors and artists to prepare the books expressly
to induce their purchase by persons who would probably be sexually
stimulated by them. It was for this reason that appellant
"wanted an emphasis on beatings and fetishism and clothing --
irregular clothing, and that sort of thing,
Page 383 U. S. 510
and again sex scenes between women; always, sex scenes had to be
very strong."
And to be certain that authors fulfilled his purpose, appellant
furnished them with such source materials as Caprio, Variations in
Sexual Behavior, and Krafft-Ebing, Psychopathia Sexualis. Not only
was there proof of the books' prurient appeal,
compare United
States v. Klaw, 350 F.2d 155 (C.A.2d Cir. 1965), but the proof
was compelling; in addition appellant's own evaluation of his
material confirms such a finding.
See Ginzburg v. United
States, 383 U. S. 463.
2.
Scienter. -- In
People v. Finkelstein, 9
N.Y.2d 342, 344-345, 214 N.Y.S.2d 363, 364, 174 N.E.2d 470, 471
(1961), the New York Court of Appeals authoritatively interpreted §
1141 to require the "vital element of
scienter," and it
defined the required mental element in these terms:
"A reading of the statute [§ 1141] as a whole clearly indicates
that only those who are in some manner aware of the
character of the material they attempt to distribute
should be punished. It is not innocent, but
calculated
purveyance of filth which is exorcised. . . . [
Footnote 9]"
(Emphasis added.) Appellant's challenge to the validity of §
1141 founded on
Smith v. California, 361 U.
S. 147, is thus foreclosed, [
Footnote 10]
Page 383 U. S. 511
and this construction of § 1141 makes it unnecessary for us to
define today "what sort of mental element is requisite to a
constitutionally permissible prosecution." Id. at
361 U. S. 154.
The Constitution requires proof of
scienter to avoid the
hazard of self-censorship of constitutionally protected material
and to compensate for the ambiguities inherent in the definition of
obscenity. The New York definition of the
scienter
required by § 1141 amply serves those ends, and therefore fully
meets the demands of the Constitution. [
Footnote 11]
Cf. Roth v. United States, 354
U.S. at
354 U. S.
495-496 (Warren, C.J., concurring).
Appellant's principal argument is that there was insufficient
proof of
scienter. This argument is without merit. The
evidence of
scienter in this record consists, in part, of
appellant's instructions to his artists and writers; his efforts to
disguise his role in the enterprise that published and sold the
books; the transparency of the character of the material in
question, highlighted by the titles, covers, and illustrations; the
massive number of obscene books appellant published, hired others
to prepare, and possessed for sale; the repetitive quality of the
sequences and formats of the books; and the exorbitant
Page 383 U. S. 512
prices marked on the books. This evidence amply shows that
appellant was "aware of the character of the material," and that
his activity was "not innocent, but calculated purveyance of
filth."
II
Appellant claims that all but one of the books were improperly
admitted in evidence because they were fruits of illegal searches
and seizures. This claim is not capable, in itself, of being
brought here by appeal, but only by a petition for a writ of
certiorari under 28 U.S.C. § 1257(3) (1964 ed.) as specifically
setting up a federal constitutional right. [
Footnote 12] Nevertheless, since appellant
challenged the constitutionality of § 1141 in this prosecution, and
the New York courts sustained the statute, the case is properly
here on appeal, and our unrestricted notation of probable
jurisdiction justified appellant's briefing of the search and
seizure issue.
Flournoy v. Weiner, 321 U.
S. 253,
321 U. S. 263;
Prudential Ins. Co. v. Cheek, 259 U.
S. 530,
259 U. S. 547.
The nonappealable issue is treated, however, as if contained in a
petition for a writ of certiorari,
see 28 U.S.C. § 2103
(1964 ed.), and the unrestricted notation of probable jurisdiction
of the appeal is to be understood as a grant of the writ on that
issue. The issue thus remains within our certiorari jurisdiction,
and we may, for good reason, even at this stage, decline to decide
the merits of the issue, much as we would dismiss a writ of
certiorari as improvidently granted. We think that this is a case
for such an exercise of our discretion.
The far-reaching and important questions tendered by this claim
are not presented by the record with sufficient
Page 383 U. S. 513
clarity to require or justify their decision. Appellant's
standing to assert the claim in regard to all the seizures is not
entirely clear; there is no finding on the extent or nature of his
interest in two book stores, the Main Stem Book Shop and Midget
Book Shop, in which some of the books were seized. The State seeks
to justify the basement storeroom seizure, in part, on the basis of
the consent of the printer-accomplice; but there were no findings
as to the authority of the printer over the access to the
storeroom, or as to the voluntariness of his alleged consent. It is
also maintained that the seizure in the storeroom was made on the
authority of a search warrant; yet neither the affidavit upon which
the warrant issued nor the warrant itself is in the record.
Finally, while the search and seizure issue has a First Amendment
aspect because of the alleged massive quality of the seizures,
see A Quantity of Books v. Kansas, 378 U.
S. 205,
378 U. S. 206
(opinion of BRENNAN, J.);
Marcus v. Search Warrant,
367 U. S. 717, the
record in this regard is inadequate. There is neither evidence nor
findings as to how many of the total available copies of the books
in the various bookstores were seized, and it is impossible to
determine whether the books seized in the basement storeroom were
on the threshold of dissemination. Indeed, this First Amendment
aspect apparently was not presented or considered by the state
courts, nor was it raised in appellant's jurisdictional statement;
it appeared for the first time in his brief on the merits.
In light of these circumstances, which were not fully
apprehended at the time we took the case, we decline to reach the
merits of the search and seizure claim; insofar as notation of
probable jurisdiction may be regarded as a grant of the certiorari
writ on the search and seizure issue, that writ is dismissed as
improvidently granted.
"Examination of a case on the merits . . . may bring into
'proper focus' a consideration which . . .
Page 383 U. S. 514
later indicates that the grant was improvident."
The Monrosa v. Carbon Black Export, Inc., 359 U.
S. 180,
359 U. S.
184.
Affirmed.
[
Footnote 1]
Section 1141 of the Penal Law, in pertinent part, reads as
follows:
"1. A person who . . . has in his possession with intent to
sell, lend, distribute . . . any obscene, lewd, lascivious, filthy,
indecent, sadistic, masochistic or disgusting book . . . or who . .
. prints, utters, publishes, or in any manner manufactures, or
prepares any such book . . . or who"
"2. In any manner, hires, employs, uses or permits any person to
do or assist in doing any act or thing mentioned in this section,
or any of them,"
"Is guilty of a misdemeanor. . . ."
"
* * * *"
"4. The possession by any person of six or more identical or
similar articles coming within the provisions of subdivision one of
this section is presumptive evidence of a violation of this
section."
"5. The publication for sale of any book, magazine or pamphlet
designed, composed or illustrated as a whole to appeal to and
commercially exploit prurient interest by combining covers,
pictures, drawings, illustrations, caricatures, cartoons, words,
stories and advertisements or any combination or combinations
thereof devoted to the description, portrayal or deliberate
suggestion of illicit sex, including adultery, prostitution,
fornication, sexual crime and sexual perversion or to the
exploitation of sex and nudity by the presentation of nude or
partially nude female figures, posed, photographed or otherwise
presented in a manner calculated to provoke or incite prurient
interest, or any combination or combinations thereof, shall be a
violation of this section."
[
Footnote 2]
The information charged 159 counts of violating § 1141; in each
instance, a single count named a single book, although often the
same book was the basis of three counts, each alleging one of the
three types of § 1141 offenses. Of these, 11 counts were dismissed
on motion of the prosecutor at the outset of the trial, and
verdicts of acquittal were entered on seven counts at the end of
trial. The remaining § 1141 counts on which appellant was convicted
are listed in the
383
U.S. 502app|>Appendix to this opinion.
Appellant was also convicted on 33 counts charging violations of
§ 330 of the General Business Law, McKinney's Consol.Laws, c. 20,
for failing to print the publisher's and printer's names and
addresses on the books. The Appellate Division reversed the
convictions under these counts, and the Court of Appeals affirmed.
The State has not sought review of that decision in this Court.
[
Footnote 3]
The trial court divided the counts into five groups for purposes
of sentencing. One group consisted of the possession counts
concerning books seized from a basement storeroom in a warehouse; a
second group of possession counts concerned books seized from
appellant's retail bookstore, Publishers' Outlet; the third
consisted of the publishing counts; the fourth consisted of the
counts charging him with hiring others to prepare the books, and
the fifth consisted of the counts charging violations of the
General Business Law. Sentences of one year and a $3,000 fine were
imposed on one count of each of the first four groups; the prison
sentences on the first three were made consecutive, and that on the
count in the fourth group was made concurrent with that in the
third group. A $500 fine was imposed on one count in the fifth
group. Sentence was suspended on the convictions on all other
counts. The suspension of sentence does not render moot the claims
as to invalidity of the convictions on those counts.
[
Footnote 4]
"It [obscene material covered by § 1141] focuses predominantly
upon what is sexually morbid, grossly perverse and bizarre, without
any artistic or scientific purpose or justification. Recognizable
'by the insult it offers, invariably, to sex, and to the human
spirit' (D. H. Lawrence, Pornography and Obscenity (1930), p. 12),
it is to be differentiated from the bawdy and the ribald. Depicting
dirt for dirt's sake, the obscene is the vile, rather than the
coarse, the blow to sense, not merely to sensibility. It smacks at
times of fantasy and unreality, of sexual perversion and sickness,
and represents, according to one thoughtful scholar, 'a debauchery
of the sexual faculty.' Murray, Literature and Censorship, 14 Books
on Trial 393, 394;
see also Lockhart and McClure,
Censorship of Obscenity: The Developing Constitutional Standards,
45 Minn.L.Rev. 5, 65."
9 N.Y.2d at 587, 216 N.Y.S.2d at 376, 175 N.E.2d at 686.
See
also People v. Fritch, 13 N.Y.2d 119, 123, 243 N.Y.S.2d 1, 5,
192 N.E.2d 713, 716 (1963):
"In addition to the foregoing tests imposed by the decisions of
the [United States] Supreme Court, this court interpreted section
1141 of the Penal Law in
People v. Richmond County News,
Inc., . . . as applicable only to material which may properly
be termed 'hard-core pornography.'"
[
Footnote 5]
The stringent
scienter requirement of § 1141, as
interpreted in
People v. Finkelstein, 9 N.Y.2d 342, 345,
214 N.Y.S.2d 363, 174 N.E.2d 470, 472 (1961), also eviscerates much
of appellant's vagueness claim.
See infra, pp.
383 U. S.
510-512.
See generally Boyce Motor Lines, Inc. v.
United States, 342 U. S. 337,
342 U. S. 342;
American Communications Assn. v. Douds, 339 U.
S. 382,
339 U. S.
412-413;
Screws v. United States, 325 U. S.
91,
325 U. S.
101-104 (opinion of MR. JUSTICE DOUGLAS);
United
States v. Ragen, 314 U. S. 513,
314 U. S. 524;
Gorin v. United States, 312 U. S. 19,
312 U. S. 27-28;
Hygrade Provision Co. v. Sherman, 266 U.
S. 497,
266 U. S.
501-503;
Omaechevarria v. Idaho, 246 U.
S. 343,
246 U. S.
348.
[
Footnote 6]
It could not be plausibly maintained that all of the appellant's
books, including those dominated by descriptions of relatively
normal heterosexual relationships, are devoid of the requisite
prurient appeal.
[
Footnote 7]
See Manual Enterprises, Inc. v. Day, 370 U.
S. 478,
370 U. S. 482
(opinion of HARLAN, J.); Lockhart and McClure, Censorship of
Obscenity: The Developing Constitutional Standards, 45 Minn.L.Rev.
5, 72-73 (1960).
It is true that some of the material in
Alberts v.
California, decided with
Roth, resembled the deviant
material involved here. But no issue involving the obscenity of the
material was before us in either case. 354 U.S. at
354 U. S. 481,
n. 8. The basic question for decision there was whether the
publication and sale of obscenity, however defined, could be
criminally punished in light of First Amendment guarantees. Our
discussion of definition was not intended to develop all the
nuances of a definition required by the constitutional
guarantees.
[
Footnote 8]
See generally 1 American Handbook of Psychiatry 593-604
(Arieti ed. 1959), for a description of the pertinent types of
deviant sexual groups.
[
Footnote 9]
For a similar
scienter requirement,
see Model
Penal Code § 251.4(2); Commentary, Model Penal Code (Tentative
Draft No. 6, 1957), 14, 49-51;
cf. Schwartz, Morals
Offenses and the Model Penal Code, 63 Col.L.Rev. 669, 677
(1963).
We do not read Judge Froessel's parenthetical reference to
knowledge of the contents of the books in his opinion in
People
v. Finkelstein, 11 N.Y.2d 300, 304, 229 N.Y.S.2d 367, 183
N.E.2d 661, 663 (1962), as a modification of this definition of
scienter. Cf. People v. Fritch, 13 N.Y.2d 119,
126, 243 N.Y.S.2d 1, 192 N.E.2d 713, 717-718 (1963).
[
Footnote 10]
The
scienter requirement set out in the text would seem
to be, as a matter of state law, as applicable to publishers as it
is to booksellers; both types of activities are encompassed within
subdivision 1 of § 1141. Moreover, there is no need for us to
speculate as to whether this
scienter requirement is also
present in subdivision 2 of § 1141 (making it a crime to hire
others to prepare obscene books), for appellant's convictions for
that offense involved books for the publication of which he was
also convicted.
No constitutional claim was asserted below or in this Court as
to the possible duplicative character of the hiring and publishing
counts.
[
Footnote 11]
The first appeal in
Finkelstein defining the
scienter required by § 1141 was decided after this case
was tried, but before the Appellate Division and Court of Appeals
affirmed these convictions. We therefore conclude that the state
appellate courts were satisfied that the § 1141
scienter
requirement was correctly applied at trial.
The § 1141 counts did not allege appellant's knowledge of the
character of the books, but appellant has not argued, below or
here, that this omission renders the information constitutionally
inadequate.
[
Footnote 12]
Unlike the claim here, the challenges decided in the appeals in
Marcus v. Search Warrant, 367 U.
S. 717, and
A Quantity of Books v. Kansas,
378 U. S. 205,
implicated the constitutional validity of statutory schemes
establishing procedures for seizing the books.
|
383
U.S. 502app|
APPENDIX TO OPINION OF THE COURT.
THE CONVICTIONS BEING REVIEWED.
bwm:
§ 1141 Counts Naming
the Book
Exhibit Pub- Hiring
No. Title of Book Possession lishing Others
1 Chances Go Around 1 63 111
2 Impact 2 64 112
3 Female Sultan 3 65 113
4 Satin Satellite 4
5 Her Highness 5 67 115
6 Mistress of Leather 6 68 116
7 Educating Edna 7 69 117
8 Strange Passions 8 70 118
9 The Whipping Chorus Girls 9 71 119
10 Order Of The Day and Bound
Maritally 10 72 120
11 Dance With the Dominant
Whip 11 73 121
12 Cult Of The Spankers 12 74 122
13 Confessions 13 75 123
14 & 46 The Hours Of Torture 14 & 40 76 124
15 & 47 Bound In Rubber 15 & 41 77 125
16 & 48 Arduous Figure Training at
Bondhaven 16 & 42 78 126
17 & 49 Return Visit To Fetterland 17 & 43 79 127
18 Fearful Ordeal In Restraintland 18 80 128
19 & 50 Women In Distress 19 & 44 81 129
20 & 54 Pleasure Parade No. 1 20 & 48 82 130
21 & 57 Screaming Flesh 21 & 51 86 134
22 & 58 Fury 22 & 52
23 So Firm So Fully Packed 23 87 135
24 I'll Try Anything Twice 24
25 & 59 Masque 25 & 53
26 Catanis 26
Page 383 U. S. 515
27 The Violated Wrestler 27 89 137
28 Betrayal 28
29 Swish Bottom 29 90 138
30 Raw Dames 30 91 139
31 The Strap Returns 31 92 140
32 Dangerous Years 32 93 141
43 Columns of Agony 37 95 144
44 The Tainted Pleasure 38 96 145
45 Intense Desire 39 97 146
51 Pleasure Parade No. 4 45 85 133
52 Pleasure Parade No. 3 46 84 132
53 Pleasure Parade No. 2 47 83 131
55 Sorority Girls Stringent
Initiation 49 98 147
56 Terror At The Bizarre
Museum 50 99 148
60 Temptation 57
61 Peggy's Distress On Planet
Venus 58 101 150
62 Ways of Discipline 59 102 151
63 Mrs. Tyrant's Finishing
School 60 103 152
64 Perilous Assignment 61 104 153
68 Bondage Correspondence 107 156
69 Woman Impelled 106 155
70 Eye Witness 108 157
71 Stud Broad 109 158
72 Queen Bee 110 159
ewm:
MR. JUSTICE HARLAN, concurring.
On the issue of obscenity, I concur in the judgment of
affirmance on premises stated in my dissenting opinion in
A
Book Named "John Cleland's Memoirs of a Woman of Pleasure" v.
Attorney General, ante, p.
383 U. S. 455.
In all other respects, I agree with and join the Court's
opinion.
MR. JUSTICE BLACK, dissenting.
The Court here affirms convictions and prison sentences
aggregating three years plus fines totaling $12,000 imposed
Page 383 U. S. 516
on appellant Mishkin based on state charges that he hired others
to prepare and publish obscene books and that Mishkin himself
possessed such books. This Court has held in many cases that the
Fourteenth Amendment makes the First applicable to the States.
See, for illustration, cases collected in my concurring
opinion in
Speiser v. Randall, 357 U.
S. 513,
357 U. S. 530.
Consequently, upon the same grounds that I dissented from a
five-year federal sentence imposed upon Ginzburg in
383 U. S. 383
U.S. 476 for sending "obscene" printed matter through the United
States mails, I dissent from affirmance of this three-year state
sentence imposed on Mishkin. Neither in this case nor in
Ginzburg have I read the alleged obscene matter. This is
because I believe, for reasons stated in my dissent in
Ginzburg and in many other prior cases, that this Court is
without constitutional power to censor speech or press regardless
of the particular subject discussed. I think the federal judiciary,
because it is appointed for life, is the most appropriate tribunal
that could be selected to interpret the Constitution, and thereby
mark the boundaries of what government agencies can and cannot do.
But because of life tenure, as well as other reasons, the federal
judiciary is the least appropriate branch of government to take
over censorship responsibilities by deciding what pictures and
writings people throughout the land can be permitted to see and
read. When this Court makes particularized rules on what people can
see and read, it determines which policies are reasonable and
right, thereby performing the classical function of legislative
bodies directly responsible to the people. Accordingly, I wish once
more to express my objections to saddling this Court with the
irksome and inevitably unpopular and unwholesome task of finally
deciding by a case-by-case, sight-by-sight personal judgment of the
members of this Court what pornography (whatever that means) is too
hard core for people
Page 383 U. S. 517
to see or read. If censorship of views about sex or any other
subject is constitutional, then I am reluctantly compelled to say
that I believe the tedious, time-consuming and unwelcome
responsibility for finally deciding what particular discussions or
opinions must be suppressed in this country should, for the good of
this Court and of the Nation, be vested in some governmental
institution or institutions other than this Court.
I would reverse these convictions. The three-year sentence
imposed on Mishkin and the five-year sentence imposed on Ginzburg
for expressing views about sex are minor in comparison with those
more lengthy sentences that are inexorably bound to follow in state
and federal courts as pressures and prejudices increase and grow
more powerful, which of course they will. Nor is it a sufficient
answer to these assuredly ever-increasing punishments to rely on
this Court's power to strike down "cruel and unusual punishments"
under the Eighth Amendment. Distorting or stretching that Amendment
by reading it as granting unreviewable power to this Court to
perform the legislative function of fixing punishments for all
state and national offenses offers a sadly inadequate solution to
the multitudinous problems generated by what I consider to be the
un-American policy of censoring the thoughts and opinions of
people. The only practical answer to these concededly almost
unanswerable problems is, I think, for this Court to decline to act
as a national board of censors over speech and press, but instead
to stick to its clearly authorized constitutional duty to
adjudicate cases over things and conduct. Halfway censorship
methods, no matter how laudably motivated, cannot, in my judgment,
protect our cherished First Amendment freedoms from the destructive
aggressions of both state and national government. I would reverse
this case and announce that the First and Fourteenth Amendments,
taken together, command that neither Congress
Page 383 U. S. 518
nor the States shall pass laws which in any manner abridge
freedom of speech and press -- whatever the subjects discussed. I
think the Founders of our Nation, in adopting the First Amendment,
meant precisely that the Federal Government should pass "no law"
regulating speech and press, but should confine its legislation to
the regulation of conduct. So too, that policy of the First
Amendment, made applicable to the States by the Fourteenth, leaves
the States vast power to regulate conduct, but no power at all, in
my judgment, to make the expression of views a crime.
MR. JUSTICE STEWART, dissenting.
The appellant was sentenced to three years in prison for
publishing numerous books. However tawdry those books may be, they
are not hard-core pornography, and their publication is, therefore,
protected by the First and Fourteenth Amendments.
Ginzburg v. United
States, 383 U. S. 497
(dissenting opinion). The judgment should be reversed.
*
*
See Ginzburg v. United States,ante at
383 U. S. 499,
note 3 (dissenting opinion). Moreover, there was no evidence at all
that any of the books are the equivalent of hard-core pornography
in the eyes of any particularized group of readers.
Cf. United
States v. Klaw, 350 F.2d 155 (C.A.2d Cir.).
Although the New York Court of Appeals has purported to
interpret § 1141 to cover only what it calls "hard-core
pornography," this case makes abundantly clear that that phrase has
by no means been limited in New York to the clearly identifiable
and distinct class of material I have described in
Ginzburg v.
United States, ante, at
383 U. S. 499,
note 3 (dissenting opinion).