Ginsberg v. New York Case Brief

Facts of the Case

The state of New York had an ordinance which outlawed the sale of material deemed obscene to minors under 17 years of age. Appellant store owner was found guilty of selling an obscene magazine to a sixteen year old boy. Appellant argued that the ordinance violated the constitutional freedom of expression. He contended that the right to see or read material associated with sex should not be determined on the person’s age. The trial court deemed the law constitutional and the appellate court affirmed. The Supreme Court granted certiorari.




“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.”

Case Information

Citation: 390 US 629 (1968)
Argued: Jan 16, 1968
Decided: Apr 22, 1968
Case Brief: 1968