Ginzburg v. United States

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Ginzburg v. United States
Seal of the United States Supreme Court.svg
Supreme Court of the United States
Argued December 7, 1965
Decided March 21, 1966
Full case nameRalph Ginzburg et al, Petitioner, versus United States.
Citations383 U.S. 463 ( more )
86 S. Ct. 942; 16 L. Ed. 2d 31
Case history
PriorUnited States v. Ginzburg, 224 F. Supp. 129 (E.D. Pa. 1963); affirmed, 338 F.2d 12 (3d Cir. 1964).
SubsequentRehearing denied, 384 U.S. 934(1966); sentence upheld on remand, United States v. Ginzburg, 436 F.2d 1386 (3d Cir. 1971); cert. denied, 403 U.S. 931(1971); rehearing denied, 404 U.S. 875(1971).
Holding
Evidence such as advertisements that publications were deliberately presented and commercially exploited as erotic is allowable as part of considering if that material is obscene.
Court membership
Chief Justice
Earl Warren
Associate Justices
Hugo Black  · William O. Douglas
Tom C. Clark  · John M. Harlan II
William J. Brennan Jr.  · Potter Stewart
Byron White  · Abe Fortas
Case opinions
MajorityBrennan, joined by Warren, Clark, White, Fortas
DissentBlack
DissentDouglas
DissentHarlan
DissentStewart
Laws applied
First Amendment, Comstock laws
Superseded by
Miller v. California , 413 U.S. 15 (1973)

Ginzburg v. United States, 383 U.S. 463 (1966), was a decision by the United States Supreme Court involving the application of the First Amendment to Federal obscenity laws. One of a trio of cases (with Memoirs v. Massachusetts and Mishkin v. New York released on the same day), Ginzburg was part of the Supreme Court's attempt to refine the definitions of obscenity after the landmark 1957 case Roth v. United States . [1]

Contents

Obscenity law

The First Amendment puts protection for expressive content in terms that are both sweeping and absolute: "Congress shall make no law... abridging the freedom of speech, or of the press" [2] Despite this broad protection, the roots of U.S. attempts to legally suppress obscenity extend back to the English common law offense of obscene libel and censorship of stage plays by the Master of the Revels. [3]

American definitions of obscene material were variable and sporadic until 1879, when the test adopted in the English case Regina v. Hicklin (1868) was used in the prosecution of D. M. Bennett. This test regarded all material tending "to deprave and corrupt those whose minds are open to such immoral influences" as obscene, regardless of its artistic or literary merit. This same test was adopted by the United States Supreme Court in Rosen v. United States , 161 U.S. 29 (1896). Under this test, works such as Honoré de Balzac's Contes Drolatiques, Gustave Flaubert's Madame Bovary , James Joyce's Ulysses , and D. H. Lawrence's Lady Chatterley's Lover had all been subject to suppression under the federal Comstock Laws.

In the 1957 case Roth v. United States , 354 U.S. 476, the Supreme Court created a new, stricter definition of obscene material as media where "...to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest." [1] This definition repudiated the former practice of finding the most shocking passages and presenting them out of context. The new definition led to much confusion, however, over what terms such as "contemporary community standards" meant in practice. [4]

Although Roth had altered the legal landscape, it did not invalidate Federal laws against mailing of obscene materials. Title 18, section 1461 of the U.S. Code declared "Every obscene, lewd, lascivious, indecent, filthy or vile article..." and "Every ...letter, circular, book, pamphlet, advertisement...giving information...where, or how, or from whom...any of such...articles, or things may be obtained..." [5] unmailable in the United States. The penalty for mailing materials covered by this prohibition was a fine of up to $5,000, [lower-alpha 1] up to five years' imprisonment, or both, for a first offense.

Prior history

Ralph Ginzburg owned or controlled three companies: Documentary Books, Inc., Eros Magazine, Inc. and Liaison News Letter, Inc. Documentary Books was the publisher of "Rey Anthony's" The Housewife's Handbook on Selective Promiscuity, [6] while Eros was described by its publisher as "frankly and avowedly concerned with erotica..." [7] and the Liaison News Letter professed a dedication to "keeping sex an art and preventing it from becoming a science." [8] Ginzburg's companies mailed advertisements nationwide [lower-alpha 2] for these three publications in 1962. At least one of these advertisements said that the publications were protected by "recent court decisions", presumably referring to Roth.

Ginzburg and his companies were charged with 28 counts of violating 18 U.S.C. 1461 and found guilty on June 14, 1963. Ginzburg was sentenced to five years in prison and fines of $42,000 [lower-alpha 3] were levied against him and his companies. [9] The trial judge in the Eastern District of Pennsylvania, Ralph C. Body, summarized his findings on the three publications' possible merits as: "They are all dirt for dirt's sake and dirt for money's sake." [7] On appeal to the Third Circuit Court of Appeals, Ginzburg challenged the convictions on the basis that the publications were not "obscene" within the meaning of the Roth decision, claiming they had "...redeeming social importance with respect to literary and artistic values." [7] The Appeals Court ruled by a 3-0 decision that all three publications were without social, literary, or artistic value, violated contemporary community standards, and appealed solely to prurient interests, making them obscene within the meaning of the statute. They affirmed the convictions and Ginzburg appealed to the Supreme Court.

Decision

The Court endorsed the determinations of the lower courts that Ginzburg's publications were obscene but extended the grounds for determining the merit (or lack thereof) of challenged publications. Brennan noted that "...each of the accused publications was originated or sold as stock in trade of the sordid business of pandering". [8] The analysis of the publications focused almost entirely on Ginzburg's marketing, saying "The 'leer of the sensualist' also permeates the advertising for the three publications." [8] Among other points, the decision noted that Ginzburg had first sought to mail these publications from Blue Ball and Intercourse in Pennsylvania before being allowed bulk mailing privileges from Middlesex, New Jersey and "...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." [8]

Although the publications were defended on the basis that portions of them had possible merit, the Court rejected this defense. The non-obscene portions were held to be a smokescreen which was belied by the publisher's presentation of them as appealing only to the titillation of the reader. "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." [8]

Effects of the decision

Ginzburg's original conviction was upheld and he served eight months in prison. [10]

Roth v. United States had declared that obscene speech was not speech protected by the First Amendment, while also holding that speech with "even the slightest redeeming social importance" was not obscene. [11] Between 1957 and 1965 the Supreme Court had heard fourteen cases that partially or wholly dealt with obscenity and attempts to apply the Roth standard in both state and Federal court cases. [9] In none of these cases did the Court affirm an obscenity conviction but the confusing and sometimes contradictory opinions that accompanied these judgments made it clear how difficult it was to apply the tests announced in the abstract in Roth to actual cases.

Ginzburg was the first post-1957 case where the Court affirmed a conviction but it did so by greatly reinterpreting the Roth test. [9] The Roth test and even the previous Hicklin test both examined the contents of the challenged publication in a vacuum. By extending the analysis of Ginzburg's publications to his marketing of them, the Court had created a new type of variable obscenity that depended on external indicators of obscenity. [12] Justice Harlan's dissent criticized this expansion as the materials would not be obscene without these external factors: "...the Court in the last analysis sustains the convictions on the express assumption that the items held to be obscene are not, viewing them strictly, obscene at all." [8] : 493–4 

Obscenity determinations by the lower courts were made more difficult by this decision. [12] Adding to the difficulty, the three obscenity cases announced on that date produced a total of fourteen separate opinions. Justice Black in his dissent protested that: "...not even the most learned judge, much less a layman, is capable of knowing in advance of an ultimate 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." [8] : 480–1  One legal scholar likened the result of these three decisions to the Tower of Babel. [9] This state of confusion would persist until the Miller v. California case in 1973.

See also

Notes

  1. ↑ equivalent to $48,372in 2022
  2. ↑ "...five million advertisements for the Eros material were mailed out to prospects in this country..." [7]
  3. ↑ equivalent to $406,323in 2022

Related Research Articles

Miller v. California, 413 U.S. 15 (1973), was a landmark decision of the U.S. Supreme Court modifying its definition of obscenity from that of "utterly without socially redeeming value" to that which lacks "serious literary, artistic, political, or scientific value". It is now referred to as the three-prong standard or the Miller test.

Memoirs v. Massachusetts, 383 U.S. 413 (1966), was the United States Supreme Court decision that attempted to clarify a holding regarding obscenity made a decade earlier in Roth v. United States (1957).

Roth v. United States, 354 U.S. 476 (1957), along with its companion case Alberts v. California, was a landmark decision of the Supreme Court of the United States which redefined the constitutional test for determining what constitutes obscene material unprotected by the First Amendment. The Court, in an opinion by Justice William J. Brennan Jr. created a test to determine what constituted obscene material: Whether the average person, applying contemporary community standards would find that the material appeals to a prurient interest in sex, and whether the material was utterly without redeeming social value. Although the Court upheld Roth’s conviction and allowed some obscenity prosecutions, it drastically loosened obscenity laws. The decision dissatisfied both social conservatives who thought that it had gone too far in tolerating sexual imagery, and liberals who felt that it infringed on the rights of consenting adults.

Jacobellis v. Ohio, 378 U.S. 184 (1964), was a United States Supreme Court decision handed down in 1964 involving whether the state of Ohio could, consistent with the First Amendment, ban the showing of the Louis Malle film The Lovers, which the state had deemed obscene.

Stanley v. Georgia, 394 U.S. 557 (1969), was a U.S. Supreme Court decision that helped to establish an implied "right to privacy" in U.S. law in the form of mere possession of obscene materials.

The Hicklin test is a legal test for obscenity established by the English case R. v Hicklin (1868). At issue was the statutory interpretation of the word "obscene" in the Obscene Publications Act 1857, which authorized the destruction of obscene books. The court held that all material tending "to deprave and corrupt those whose minds are open to such immoral influences" was obscene, regardless of its artistic or literary merit.

<span class="mw-page-title-main">Ralph Ginzburg</span> American editor, publisher, journalist, and photographer (1929–2006)

Ralph Ginzburg was an American editor, publisher, journalist, and photographer. He was best known for publishing books and magazines on erotica and art and for his conviction in 1963 for violating federal obscenity laws.

The phrase "I know it when I see it" is a colloquial expression by which a speaker attempts to categorize an observable fact or event, although the category is subjective or lacks clearly defined parameters. It has been a common expression since at least the 19th century. A similar phrase appears in Arthur Conan Doyle's "The Hound of the Baskervilles," in which Sherlock Holmes comments on the quality of a portrait by stating "I know what is good when I see it." The phrase was used in 1964 by United States Supreme Court Justice Potter Stewart to describe his threshold test for obscenity in Jacobellis v. Ohio. In explaining why the material at issue in the case was not obscene under the Roth test, and therefore was protected speech that could not be censored, Stewart wrote:

I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description ["hard-core pornography"], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.

Kois v. Wisconsin, 408 U.S. 229 (1972), was a ruling by the U.S. Supreme Court in the case of the obscenity conviction of Milwaukee editor-publisher John Kois, whose underground newspaper Kaleidoscope had published two small photographs of pictures of nudes and a sexually-oriented poem entitled "Sex Poem" in 1968. The Supreme Court ruled that, in the context in which they appeared, the photographs were rationally related to a news article which they illustrated and were thus entitled to Fourteenth Amendment protection, and that the poem "bears some of the earmarks of an attempt at serious art", and thus was not obscene under the Roth v. United States test. In the words of the concurring opinion of Justice William O. Douglas, "In this case, the vague umbrella of obscenity laws was used in an attempt to run a radical newspaper out of business and to impose a two-year sentence and a $2,000 fine upon its publisher. If obscenity laws continue in this uneven and uncertain enforcement, then the vehicle has been found for the suppression of any unpopular tract. The guarantee of free expression will thus be diluted and in its stead public discourse will only embrace that which has the approval of five members of this Court."

MANual Enterprises, Inc. v. Day, 370 U.S. 478 (1962), is a decision by the Supreme Court of the United States in which the Court held that magazines consisting largely of photographs of nude or near-nude male models are not considered "obscene" within the meaning of 18 U.S.C. § 1461, which prohibits the mailing of obscene material. It was the first case in which the Court engaged in plenary review of a Post Office Department order holding obscene matter "nonmailable".

An obscenity is any utterance or act that strongly offends the prevalent morality and social politics of the time. It is derived from the Latin obscēnus, obscaenus, "boding ill; disgusting; indecent", of uncertain etymology. Such loaded language can be used to indicate strong moral repugnance and outrage, vile, vigilance in conservation, or revenge. In expressions such as "obscene profits" and "the obscenity of war," ; misdirection. As a legal term, it usually refers to graphic depictions of people engaged in sexual and excretory activity, and related utterances of profanity, or the exploited child, human being or situation on display.

Ginsberg v. New York, 390 U.S. 629 (1968), was a United States Supreme Court case in which the Court ruled that material that is not obscene may nonetheless be harmful for children, and its marketing may be regulated.

United States v. Thirty-seven Photographs, 402 U.S. 363 (1971), is a United States Supreme Court decision in an in rem case on procedures following the seizure of imported obscene material. A 6–3 court held that the federal statute governing the seizures was not in violation of the First Amendment as long as the government began forfeiture proceedings within 14 days of the seizure.

United States v. 12 200-ft. Reels of Film, 413 U.S. 123 (1973), was an in rem case decided by the United States Supreme Court that considered the question of whether the First Amendment required that citizens be allowed to import obscene material for their personal and private use at home, which was already held to be protected several years earlier. By a 5–4 margin, the Court held that it did not.

Quantity of Books v. Kansas, 378 U.S. 205 (1964), is an in rem United States Supreme Court decision on First Amendment questions relating to the forfeiture of obscene material. By a 7–2 margin, the Court held that a seizure of the books was unconstitutional, since no hearing had been held on whether the books were obscene, and it reversed a Kansas Supreme Court decision that upheld the seizure.

Marcus v. Search Warrant, 367 U.S. 717 (1961), full title Marcus v. Search Warrant of Property at 104 East Tenth Street, Kansas City, Missouri, is an in rem case decided by the United States Supreme Court on the seizure of obscene materials. The Court unanimously overturned a Missouri Supreme Court decision upholding the forfeiture of hundreds of magazines confiscated from a Kansas City wholesaler. It held that both Missouri's procedures for the seizure of allegedly obscene material and the execution of the warrant itself violated the Fourth and Fourteenth amendments' prohibitions on search and seizure without due process. Those violations, in turn, threatened the rights protected by the First Amendment.

Smith v. California, 361 U.S. 147 (1959), was a U.S. Supreme Court case upholding the freedom of the press. The decision deemed unconstitutional a city ordinance that made one in possession of obscene books criminally liable because it did not require proof that one had knowledge of the book's content, and thus violated the freedom of the press guaranteed in the First Amendment. Smith v. California continued the Supreme Court precedent of ruling that questions of freedom of expression were protected by the Due Process Clause of the Fourteenth Amendment from invasion by state action. It also established that in order for one to be criminally liable for possession of obscene material, there must be proof of one's knowledge of the material. It described that by requiring booksellers to know the contents of all of the books that they sell, this would lead to the government compelling booksellers to self-censor thereby restricting the public's access to books which the State could not constitutionally suppress directly.

United States obscenity law deals with the regulation or suppression of what is considered obscenity and therefore not protected speech under the First Amendment to the United States Constitution. In the United States, discussion of obscenity typically relates to defining what pornography is obscene, as well as to issues of freedom of speech and of the press, otherwise protected by the First Amendment to the Constitution of the United States. Issues of obscenity arise at federal and state levels. State laws operate only within the jurisdiction of each state, and there are differences among such laws. Federal statutes ban obscenity and child pornography produced with real children. Federal law also bans broadcasting of "indecent" material during specified hours.

Heller v. New York, 413 U.S. 483 (1973), was a United States Supreme Court decision which upheld that states could make laws limiting the distribution of obscene material, provided that these laws were consistent with the Miller test for obscene material established by the Supreme Court in Miller v. California, 413 U.S. 15 (1973). Heller was initially convicted for showing a sexually explicit film in the movie theater which he owned, under New York Penal Law § 235.0 which stated that and individual “is guilty of obscenity when, knowing its content and character, he 1. Promotes, or possesses with intent to promote, any obscene material; or 2. Produces, presents or directs an obscene performance or participates in a portion thereof which is obscene or which contributes to its obscenity."

Rabe v. Washington, 405 U.S. 313 (1972), was a decision by the United States Supreme Court involving the application of obscenity laws and criminal procedure to the states. On 29 August 1968, William Rabe, the manager of a drive-in movie theater in Richland, Washington, was arrested on obscenity charges for showing the film Carmen, Baby. Due to First Amendment concerns, the local court convicted Rabe not on the basis that the film as a whole was obscene, but that exhibiting it in a drive-in theater was. The Supreme Court reversed the conviction holding that the citizens of Washington had no notice under the Sixth Amendment that the place where a film was shown was an element of the offense.

References

  1. 1 2 Roth v. United States , 354 U.S. 476, 489 (1957).
  2. ↑ "The Bill of Rights: A Transcription". America's Founding Documents. The U.S. National Archives and Records Administration. November 4, 2015. Retrieved July 6, 2017.
  3. ↑ Berbysse, S.J., Edward J. (March 2017). "Conflict in the Courts: Obscenity Control & First Amendment Freedoms". The Catholic Lawyer. 20 (1).
  4. ↑ Shugrue, Richard E.; Zieg, Patricia (1974). "An Atlas for Obscenity: Exploring Community Standards" (PDF). Creighton Law Review. 7: 157. Retrieved January 16, 2018. In attempting to define obscenity the Court has unfortunately failed to provide adequate guidelines for determining whether a work is obscene and has thus left inferior courts in a state approaching mass confusion.
  5. ↑ 18 U.S.C.   § 1461
  6. ↑ Anthony, Rey (1962). The Housewife's Handbook on Selective Promiscuity. New York: Documentary Books, Inc. ISBN   9781608722617.
  7. 1 2 3 4 United States v. Ginzburg, 338F.2d12 (3d Cir.1964).
  8. 1 2 3 4 5 6 7 Ginzburg v. United States, 383 U.S. 463 (1966).
  9. 1 2 3 4 Magrath, C. Peter (1966). "The obscenity cases: Grapes of Roth". Supreme Court Review. 1966: 7–77. doi:10.1086/scr.1966.3108739. S2CID   147303992.
  10. ↑ Corliss, Richard (July 15, 2006). "My Favorite Pornographer". Time. Retrieved November 10, 2017.
  11. ↑ Kalven, Jr., Harry (1960). "The Metaphysics of the Law of Obscenity". The Supreme Court Review. 1960: 1–45. doi:10.1086/scr.1960.3108685. S2CID   55143484.
  12. 1 2 Monaghan, Henry P. (November 1966). "Obscenity, 1966: The Marriage of Obscenity Per Se and Obscenity Per Quod". The Yale Law Journal. 76 (1): 127–157. doi:10.2307/794854. JSTOR   794854.
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