Facts of the case
conviction.
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 Court affirmed his
Question
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?
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.