GINSBERG v NEW YORK
Court affirmed his conviction.
William Brennan
Facts of the case
Sam Ginsberg and his wife operated “Sam’s Stationary
and Luncheonette” in Bellmore on Long Island in New
York. They had a lunch counter that sold magazines,
including some so-called “girlie” magazines. On October
18, 1965, a sixteen-year-old boy entered the store and
purchased copies of “Sir” and “Mr. Annual”; the purchase
was instigated by the boy’s parents to lay the grounds for
Ginsberg’s prosecution. On October 26, 1965, Ginsberg
sold the same minor copies of “Man to Man” and
“Escapade” at the instigation of a police officer. All of the
magazines in question contained pictures of nudes, and
“Escapade” and “Mr. Annual” contained verbal
descriptions and narrative accounts of sexual excitement
and sexual conduct.
Section 484-h of New York’s Penal Law prohibited the sale
to persons under seventeen years of age of 1) pictures of
nudity or sexual conduct or 2) literature containing
narrative accounts or sexual excitement, if these
materials were “harmful to minors.” It defined “harmful to
minors” as that quality of any description or
representation of nudity, sexual conduct, sexual
excitement, or sadomasochistic abuse that 1)
predominantly appealed to the prurient, shameful or
morbid interest of minors, 2) was patently offensive to
prevailing standards in the adult community with respect
to what was suitable material for minors, and 3) was
utterly without redeeming social importance for minors.
Ginsberg was tried before a judge without a jury in
Nassau County District Court and was found guilty on
two counts of violating Section 484-h. The Appellate
Term, Second Department of the New York Supreme
ISSUES
1. Did Section 484-h of New York’s Penal Law violate the
First and Fourteenth Amendments on its face because it
restrained expression?
2. Was Section 484-h of the Penal Law unconstitutionally
vague and uncertain on its face, in violation of the due
process clause of the Fourteenth Amendment?
HELD:
No and no. In a 6-3 decision written by Justice William
Brennan, the Court held that Section 484-h did not
violate the First and Fourteenth Amendments as a
restriction on expression. Justice Brennan wrote that
obscenity was not within the area of protected speech or
press. He acknowledged that the magazines were not
obscene for adults, but emphasized that Section 484-h
did not prohibit Ginsberg from selling the magazines in
question to persons seventeen years of age or older.
Justice Brennan focused on Ginsberg’s argument that the
scope of the constitutional freedom to read material
concerned with sex did not depend upon whether that
person was an adult or a minor. He rejected Ginsberg’s
contention that Section 484-h was a violation of minors’
constitutionally protected freedoms, characterizing
Section 484-h as New York’s attempt to adjust the
assessment of obscenity in terms of the sexual interests
of minors. Justice Brennan wrote that New York had an
interest in the well-being of its children, and that this
subject was within New York’s constitutional power of
regulation.
Justice Brennan also held that Section 484-h was not
unconstitutionally void for vagueness. He rejected
Ginsberg’s argument that Section 484-h failed to give
adequate notice of what was prohibited. The New York
Court of Appeals previously read Section 484-h to
prohibit knowingly selling obscene material to minors,
and the Court also read a knowledge requirement into
other similar state statutes. Justice Brennan also rejected
Ginsberg’s argument that the statute was impermissibly
vague, as Section 484-h expressly stated that a defendant
must be acquitted if he proved that he made a reasonable
bona fide attempt to ascertain the true age of the minor in
question.

Justice Potter Stewart concurred. He argued that while

the First Amendment protected men’s freedom to decide
what they will read and listen to, government regulation
could extend to settings where a person lacked the
capacity to make a choice. New York was free to
determine that children were not possessed of a full
capacity for individual choice.

Justice William Douglas dissented, joined by Justice

Hugo Black. He acknowledged that the act was not a
violation of substantive due process under the Fourteenth
Amendment, but disagreed that obscene material was
excluded from First Amendment protection.

Justice Abraham Fortas dissented, arguing that the

majority avoided the essence of the case’s problem by
failing to define obscenity for the purposes of the
censorship of material sold to minors.