383 U.S. 502 (1966), 49, Mishkin v. New York

Docket Nº:No. 49
Citation:383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56
Party Name:Mishkin v. New York
Case Date:March 21, 1966
Court:United States Supreme Court

Page 502

383 U.S. 502 (1966)

86 S.Ct. 958, 16 L.Ed.2d 56



New York

No. 49

United States Supreme Court

March 21, 1966

Argued December 7, 1965



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.


1. The statute is not impermissibly vague. Roth v. United States, 354 U.S. 476, 491-492. Pp. 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. 508.

3. There was ample evidence that appellant possessed the requisite scienter. Pp. 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. 512-514.

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

Page 503

BRENNAN, J., lead opinion

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 Law1 by hiring others to prepare obscene books, publishing [86 S.Ct. 961] obscene books, and possessing obscene books with intent to sell them.2 26 Misc.2d 152, 207 N.Y.S.2d 390

Page 504

(1960). He was sentenced to prison terms aggregating three years and ordered to pay $12,000 in fines for these crimes.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 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 [86 S.Ct. 962] 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

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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.


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, 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),4 and thus § 1141, like the statutes in

Page 507

Roth, provides reasonably ascertainable standards of guilt.5

[86 S.Ct. 963] 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 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,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 489-490, does not foreclose this holding.7 In regard to the prurient appeal requirement, the

Page 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 [86 S.Ct. 964] 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,8 it also avoids the inadequacy of the...

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