390 U.S. 629 (1968), 47, Ginsberg v. New York

Docket Nº:No. 47
Citation:390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195
Party Name:Ginsberg v. New York
Case Date:April 22, 1968
Court:United States Supreme Court
 
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Page 629

390 U.S. 629 (1968)

88 S.Ct. 1274, 20 L.Ed.2d 195

Ginsberg

v.

New York

No. 47

United States Supreme Court

April 22, 1968

Argued January 16, 1968

APPEAL FROM THE APPELLATE TERM OF THE SUPREME COURT

OF NEW YORK, SECOND JUDICIAL DEPARTMENT

Syllabus

Appellant, who operates a stationery store and luncheonette, was convicted of selling "girlie" magazines to a 16-year-old boy in violation of § 484-h of the New York Penal Law. The statute makes it unlawful "knowingly to sell . . . to a minor" under 17 "(a) any picture . . . which depicts nudity . . . and which is harmful to minors," and "(b) any . . . magazine . . . which contains [such pictures] and which, taken as a whole, is harmful to minors." Appellant's conviction was affirmed by the Appellate Term of the Supreme Court. He was denied leave to appeal to the New York Court of Appeals.

Held:

1. The magazines here involved are not obscene for adults, and appellant is not barred from selling them to persons 17 years of age or older. Pp. 634-635.

2. Obscenity is not within the area of protected speech or press, Roth v. United States, 354 U.S. 476, 485, and there is no issue here of the obscenity of the material involved, as appellant does not argue that the magazines are not "harmful to minors." P. 635.

3. It is not constitutionally impermissible for New York, under this statute, to accord minors under 17 years of age a more restricted right than that assured to adults to judge and determine for themselves what sex material they may read and see. Pp. 637-643.

(a) The State has power to adjust the definition of obscenity as applied to minors, for even where there is an invasion of protected freedoms, "the power of the state to control the conduct of children reaches beyond the scope of its authority over adults." Prince v. Massachusetts, 321 U.S. 158, 170. Pp. 638-639.

(b) Constitutional interpretation has consistently recognized that the parents' claim to authority in the rearing of their children is basic in our society, and the legislature could properly conclude that those primarily responsible for children's wellbeing are entitled to the support of laws designed to aid discharge of that responsibility. P. 639.

Page 630

(c) The State has an independent interest in protecting the welfare of children and safeguarding them from abuses. Pp. 640-641.

(d) This Court cannot say that the statute, in defining obscenity on the basis of its appeal to minors under 17, has no rational relation to the objective of safeguarding such minors from harm. Pp. 641-643.

4. Subsections (f) and (g) of § 484-h are not void for vagueness. Pp. 643-645.

(a) The New York Court of Appeals, in Bookcase, Inc. v. Broderick, 18 N.Y.2d 71, 76, 218 N.E.2d 668, 671, construed the definition of obscenity "harmful to minors" in subsection (f) "as virtually identical to" this Court's most recent statement of the elements of obscenity in Memoirs v. Massachusetts, 383 U.S. 413, 418, and accordingly the definition gives adequate notice of what is prohibited, and does not offend due process requirements. P. 643.

(b) Since the New York Legislature's attention was drawn to People v. Finkelstein, 9 N.Y.2d 342, 174 N.E.2d 470, which defined the nature of scienter for New York's general obscenity statute, when it considered § 484-h, it may be inferred that the reference in provision (i) of subsection (g) to knowledge of the "character and content" of the material incorporates the gloss given the term "character" in People v. Finkelstein. P. 644.

(c) Provision (ii) of subsection (g) states expressly that a defendant must be acquitted on the ground of "honest mistake" if he proves that he made "a reasonable bona fide attempt to ascertain the true age of such minor." P. 645.

Affirmed.

Page 631

BRENNAN, J., lead opinion

MR. JUSTICE BRENNAN delivered the opinion of the Court.

This case presents the question of the constitutionality on its face of a New York criminal obscenity statute which [88 S.Ct. 1276] prohibits the sale to minors under 17 years of age of material defined to be obscene on the basis of its appeal to them, whether or not it would be obscene to adults.

Appellant and his wife operate "Sam's Stationery and Luncheonette" in Bellmore, Long Island. They have a lunch counter, and, among other things, also sell magazines, including some so-called "girlie" magazines. Appellant was prosecuted under two informations, each in two counts, which charged that he personally sold a 16-year-old boy two "girlie" magazines on each of two dates in October, 1965, in violation of § 484-h of the New York Penal Law. He was tried before a judge without a jury in Nassau County District Court and was found guilty on both counts.1 The judge found (1) that the

Page 632

magazines contained pictures which depicted female "nudity" in a manner defined in subsection 1(b), that is

the showing of . . . female . . . buttocks with less than a full opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple . . . ,

and (2) that the pictures were "harmful to minors" in that they had, within the meaning of subsection 1(f),

Page 633

that quality of . . . representation . . . of nudity . . . [which] . . . (i) predominantly appeals to the prurient, shameful or morbid interest of minors, and (ii) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors, and (iii) is utterly without redeeming social importance for minors.

He held that both sales to the 16-year-old [88 S.Ct. 1277] boy therefore constituted the violation under § 484-h of "knowingly to sell . . . to a minor" under 17 of "(a) any picture . . . which depicts nudity . . . and which is harmful to minors," and "(b) any . . . magazine . . . which contains . . . [such pictures] . . . and which, taken as a whole, is harmful to minors." The conviction was affirmed without opinion by the Appellate Term, Second Department, of the Supreme Court. Appellant was denied leave to appeal to the New York Court of Appeals, and then appealed to this Court. We noted probable jurisdiction. 388 U.S. 904. We affirm.2

Page 634

I

The "girlie" picture magazines involved in the sales here are not obscene for adults, Redrup v. New York, 386 U.S. 767.3 But § 484-h does not [88 S.Ct. 1278] bar the appellant

Page 635

from stocking the magazines and selling them to persons 17 years of age or older, and therefore the conviction is not invalid under our decision in Butler v. Michigan, 352 U.S. 380.

Obscenity is not within the area of protected speech or press. Roth v. United States, 354 U.S. 476, 485. The three-pronged test of subsection 1(f) for judging the obscenity of material sold to minors under 17 is a variable from the formulation for determining obscenity under Roth stated in the plurality opinion in Memoirs v. Massachusetts, 383 U.S. 413, 418. Appellant's primary attack upon § 484-h is leveled at the power of the State to adapt this Memoirs formulation to define the material's obscenity on the basis of its appeal to minors, and thus exclude material so defined from the area of protected expression. He makes no argument that the magazines are not "harmful to minors" within the definition in subsection 1(f). Thus, "[n]o issue is presented . . . concerning the obscenity of the material involved." Roth, supra, at 481, n. 8.

The New York Court of Appeals "upheld the Legislature's power to employ variable concepts of obscenity"4

Page 636

in a case in which the same challenge to state power to enact such a law was also addressed to § 484-h. Bookcase, Inc. v. Broderick, 18 N.Y.2d 71, 218 N.E.2d 668, appeal dismissed for want of a properly presented federal question, sub nom. Bookcase, Inc. v. Leary, 385 U.S. 12. In sustaining state power to enact the law, the Court of Appeals said, Bookcase, Inc. v. Broderick, at 75, 218 N.E.2d at 671:

[M]aterial which is protected for distribution to adults is not necessarily constitutionally protected from restriction upon its dissemination to children. In other words, the concept of obscenity or of unprotected matter may vary according to the group to whom the questionable material is directed or from whom it is quarantined. Because of the State's exigent interest in preventing distribution to children of objectionable material, it can exercise [88 S.Ct. 1279] its power to protect the health, safety, welfare and morals of its community by barring the distribution to children of books recognized to be suitable for adults.

Appellant's attack is not that New York was without power to draw the line at age 17. Rather, his contention is the broad proposition that the scope of the constitutional freedom of expression secured to a citizen to read or see material concerned with sex cannot be made to depend upon whether the citizen is an adult or a minor. He accordingly insists that the denial to minors under 17 of access to material condemned by § 484-h, insofar as that material is not obscene for persons 17 years of age or older, constitutes an unconstitutional deprivation of protected liberty.

We have no occasion in this case to consider the impact of the guarantees of freedom of expression upon the totality of the relationship of the minor and the State, cf. In re Gault, 387 U.S. 1, 13. It is enough for the purposes of this case that we inquire whether it was

Page 637

constitutionally impermissible for New York, insofar as § 484-h does so, to accord minors under 17 a more restricted right than that assured to adults to judge and determine for themselves what sex material they may read or see. We conclude that we...

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