Ginsberg v. New York

PETITIONER:Ginsberg
RESPONDENT:New York
LOCATION:Formerly Sam’s Stationery and Luncheonette

DOCKET NO.: 47
DECIDED BY: Warren Court (1967-1969)
LOWER COURT: State appellate court

CITATION: 390 US 629 (1968)
ARGUED: Jan 16, 1968
DECIDED: Apr 22, 1968

ADVOCATES:
Emanuel Redfield – for appellant
William Cahn – for appellee

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 Court affirmed his conviction.

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?

Earl Warren:

Number 47, Sam Ginsberg, Appellant, versus New York.

Mr. Redfield.

Emanuel Redfield:

Mr. Chief Justice, members of the Court.

This is an appeal from the judgment of the Appellate Term of the Supreme Court of the State of New York which affirmed a conviction of the appellant for having violated Section 484-h of the Penal Law of the State of New York.

Since the Highest Court of the State of New York, the Court of Appeals did not take this case for review, the Appellate Term as the Court in which — it was a final court in which a judgment could be had.

And this judgment raises several important and noble questions.

And the first one is, was there on its face and in its operation, is Section 484-h of the Penal Law repugnant to the constitution, the amendment — First Amendment and the Fourteenth Amendment because it acts as a restraint upon expression.

The second question is, is the statute vague and overbroad by its terms and its standards if it has meaningful standards?

And third, is this publication or before publications involved within the scope of the statute in other words, was the Act validly applied to this particular plaint — appellant.

I should say at the outset Your Honors —

Potter Stewart:

Whether it was in this — within the scope of the statute just that question isolate it is a matter of state law, isn’t it?

Emanuel Redfield:

Well, I mean constitutionally.

In other words of these — is this particular magazine for example —

Potter Stewart:

Within the scope of the statute that’s a matter of state law, New York law.

Emanuel Redfield:

Was in the scope but as applied, as the statute has been applied and construed with respect to this particular publication can you condemn this appellant.

Potter Stewart:

Well, does the constitution permits you to do what the state did with respect to that publication regardless of what the statute says, that’s our question as to —

Emanuel Redfield:

Yes, that’s in it.

I should say at the outset Your Honors that if this weren’t a criminal conviction and I had a choice in the matter I would have not — confining the issue solely to the first question because I think the issue was right.

And not only is it right but I think it is imperative that a decision be reached on that point even if the appellant can be victorious on any of the other points.

I think Your Honors, should at this time undertake the task of putting – address this question which has caused so many uncertainties and so much debate.

And the question comes down to this, whether the power of the state maybe exercised to punish a person who sells certain publications enumerated in the statute to persons based on the age of the reader or the purchaser.

And I say too that the basic question — that basic question falls unto two categories.

The first, as a matter of principle, is it repugnant to the constitution and secondly, that by its operation in effect as a pragmatic question, does it intimidate the vendor and publisher of books to the point where it become censorship?

In other words, the second question to be clear is similar to the question that was raised and decided in Smith against California.

Smith against California you recall was a purely practical decision because the Court found that under the circumstances of the operation of the statute intimidation resulted was its consequent censorship.

Now, the court below and — meaning the Appellate Term in writing for affirmance wrote nothing and the Court of Appeals also stated nothing but I suspect from the argument that went on that it’s determination came about because of the case of the Bookcase against Broderick which was decided about a year ago in the Court of Appeals of the State of New York in which I brought to this Court.

The Bookcase decision rested on a dictum in the Jacobellis case and also rested on the dissenting language in People against Bookcase in which case, a prior law had been rendered unconstitutional by the Highest Court of New York.

So at this point, I cannot give you the ultimate construction of the statute as rendered in this case but can only refer you to what was said in Bookcase against Broderick.

My appellant who received the suspended sentence is not a flamboyant vendor nor a self-seeking or say like charging along in the rights of free speech.

He is just the poor, simple, humble owner of a candy store or stationary store or a newspaper (Inaudible) that sort of a place that is so common throughout this country.

Emanuel Redfield:

He has this little store which of size 70 by — seven by 30 feet in the little village of Bellmore, Long Island, New York.

And he works from morning to late at night with his wife to eat out in existence.

And it’s so much though, that he had to shut the store for about three days during the pendency of the trial under this case.

And as I said, he sells almost everything that that type of a store sells and as part of it, he carries about 200 titles of magazines.

He has no choice in these titles, they are sent to him automatically by the jobbers.

William J. Brennan, Jr.:

You mean there are tie-in kinds of (Voice Overlap) —

Emanuel Redfield:

They’re sort of tie-in and the —

William J. Brennan, Jr.:

And if he wants Time (Voice Overlap) —

Emanuel Redfield:

Well, he doesn’t write —

William J. Brennan, Jr.:

Those things (Voice Overlap)–

Emanuel Redfield:

Yes.

William J. Brennan, Jr.:

— he has to takeover rest?

Emanuel Redfield:

He has to take that or I’ll — let’s put it —

William J. Brennan, Jr.:

Is that all in the record?

Emanuel Redfield:

That’s in the record but not as a tie-in and not — is not developed to that extent but it is developed to the extent what — which we properly know in the field and that is that he doesn’t order these magazines, they just come to him from the distributor.

Now, the charge against him was on October 18th, 1965 he sold two magazines, one called Mr. Annual and the other is Sarah this thing and if Your Honors recall just a few months ago as I can recall, you had this particular title before you in the case of Gent versus Arkansas which I argued here.

Hugo L. Black:

What’s the title?

Emanuel Redfield:

Sarah is in the name of the magazine.

It’s not the same issue as involved in Gent but it’s of similar publication, it’s a girly type of magazine that in nearly date we used to call them Police Gazette Magazines.

And now they call it “Girly” and then there was another charge against him.

Then on October 26, 1965, he sold magazine called “Man to Man” an escapade to a similar type of magazines.

And it should be observed, why — of course he sold them to this boy of 16 years of age.

It should be observed that the charge here is only that these pictures contain nudes and I should — that the magazines contained pictures that were nudes and that these were harmful to minors.

That’s all the charge is and I emphasize it because you will see in a few minutes that the judge made findings which extended beyond that charge.

Hugo L. Black:

Are you asking us to review the findings?

Emanuel Redfield:

No, I’m not asking to review it but you could only take on the findings upon which he was charged, Cole against Arkansas situation, he was only charged with a certain crime.

It can only be found under that charge.

William J. Brennan, Jr.:

Well, specifically, are you complaining about the finding that the written material apart from the photographs?

Emanuel Redfield:

Yes, that’s right and —

William J. Brennan, Jr.:

And you say that that —

Emanuel Redfield:

That should be disregarded because I don’t think its part of the charge.

William J. Brennan, Jr.:

I see.

Emanuel Redfield:

At the time of the trial, the defendant challenged the constitutionality of the statute on its face and he was overruled and was convicted, the Appellate Terms they said before affirmed and the Court of Appeals refused to review.

Earl Warren:

Would you repeat why Mr. Redfield, repeat why we shouldn’t take in a consideration that reading matter in the magazine as well as the pictures?

Emanuel Redfield:

Because he wasn’t charged with the reading matter, he was charged merely —

Earl Warren:

What was the charge?

Emanuel Redfield:

The charge —

Earl Warren:

You said —

Emanuel Redfield:

The charge was that he — that these magazines contained nude pictures, that’s all.

Byron R. White:

(Inaudible)

Emanuel Redfield:

Yes.

You’ll find the charge on page 2 and 4 in the record.

But I don’t want to dwell on that too much although I bring it to your attention.

I think there are more important issues in this case.

Yes, you — the charges on page 2 to 4 of the record.

Hugo L. Black:

Well, of course that’s a very important issue if he was charged in one thing and convicted (Voice Overlap) —

Emanuel Redfield:

Yes, that’s a — but I say its subsidiary to my main contention in this case.

Hugo L. Black:

What do you mean, you’re waiving it?

Emanuel Redfield:

No, I’m not waiving it.

Since as I’ve said before he was convicted of a crime, I can’t waive it.

I’d rely upon it as the last straw.

The judge after the trial made the following finding that the boy was 16 years of age and that the defendant knew or had reason to know that he was under 17 years of age and all the magazines in question contained pictures of nudes.

And then he made a charge — finding that the magazine Escapade and Mr. Annual contain variable descriptions and narrative accounts of sexual excitement and sexual conduct, so you see, there alone, it goes beyond the charge.

William J. Brennan, Jr.:

Well, let me get this, this is at page 248, isn’t it?

Emanuel Redfield:

No, on page — I’m reading from page 5 — yes, in the record, its on page —

William J. Brennan, Jr.:

Well, I’m looking at the Court’s finding.

Emanuel Redfield:

Yes.

William J. Brennan, Jr.:

In which he finds that people who are proven beyond a reasonable doubt before he was 16, defendant who had reason to know that it was that, and that People’s Exhibit two, three, four and five, now those are the four magazines, are they?

Emanuel Redfield:

Yes.

William J. Brennan, Jr.:

Contained pictures and photographs depicting female nudities as to find by the Courts as sexual?

Emanuel Redfield:

Yes.

William J. Brennan, Jr.:

And this has last further.

Emanuel Redfield:

Yes.

William J. Brennan, Jr.:

That People’s Exhibit five and People’s Exhibit three contained a verbal descriptions and narrative accounts of sexual excitement and sexual conduct?

Emanuel Redfield:

Yes, that’s right.

William J. Brennan, Jr.:

And that’s what you say is beyond the charge —

Emanuel Redfield:

Scope of the charge —

William J. Brennan, Jr.:

— and that’s the Cole-Arkansas point, is it?

Emanuel Redfield:

Yes, but as I say I’m not pressing that as the ultimate decision in this case —

Hugo L. Black:

You’re not pressing it.

I —

Emanuel Redfield:

No, I mean —

Hugo L. Black:

I don’t quite understand it.

Emanuel Redfield:

I mean my emphasis here is for a decision —

Hugo L. Black:

You mean there’s something else that’s more important?

Emanuel Redfield:

Yes, I do.

I do think —

William J. Brennan, Jr.:

You want us to declare the statute unconstitutional, that’s what you want?

Emanuel Redfield:

Yes sir.

William J. Brennan, Jr.:

Even if you can win by — on the Cole-Arkansas (Voice Overlap) —

Emanuel Redfield:

Right sir.

William J. Brennan, Jr.:

Why do you do that Mr. Redfield?

Emanuel Redfield:

Well, I’m not trying to make it harder for —

William J. Brennan, Jr.:

You’ve argued — the last time you were here, you tried that too.

Emanuel Redfield:

Well, I try also nothing, sometimes I succeed, in other times not.

Earl Warren:

You put great stress upon this man being very a poor man, this old man, so were the — I would think it could be — interested in winning your case anyway you could win it for him.

Emanuel Redfield:

And — well, I also place that emphasis I should say because many people confused as Ginsberg was another Ginsberg that was here before and I think that distinction is very clear in this case.

Potter Stewart:

What was the sentence in this case?

Emanuel Redfield:

He got to suspended sentence.

The judge thought so highly of him that the man in the community was worthy of his indulgence and he suspended the sentence.

Earl Warren:

For how long?

Emanuel Redfield:

He didn’t mention, he just said suspended sentence and that was it.

Potter Stewart:

He doesn’t impose a sentence and then suspend it?

Emanuel Redfield:

That’s right.

Potter Stewart:

Well, what was the sentence that he suspended?

Emanuel Redfield:

He didn’t impose any sentence.

Potter Stewart:

Well, then you —

Emanuel Redfield:

He just said, suspended sentence.

It’s very common practice in New York to state that.

William J. Brennan, Jr.:

Do you challenge that practice?

Emanuel Redfield:

No.

William J. Brennan, Jr.:

That was successfully challenged here not long ago.

Emanuel Redfield:

I remember that but I haven’t — you know I should men — it should be pointed out too that this statute is directed at those who sell the magazines for a monetary consideration.

In other words, if it were given away, the person couldn’t be guilty of the crime but if he got money for it, it made a big difference.

And the reason I emphasize this is so that you could see that there is something wrong with the statute right off because if the purpose of the statute is to restrict the promiscuous circulation of this type of magazine to those under 17 they certainly haven’t attained that even in the text because it can be distributed to those who will not pay a monetary consideration.

In other words, if one of Tom Sawyer’s crowd came along and offered a bookseller an apple, that would be alright?

But if he got ten cents for it, he can go to jail for a year.

Now, of course we all would like to have the best of literature for the children and I would say also for adults and perhaps if I were an emperor, I would say there are certain 25 books that everybody can’t — may read and that would be it but since I’m not an emperor and I do not care to tell anybody what they may read, I have serious doubt as to whether or not there was great wisdom in this law.

And also point out the fact that several of the amicus in this case as well as the Columbia law review had found some solace in the recent Gold case in which children’s right to read should be considered and protected because children wished to be free of the orthodoxy of adults.

But — and this relates too to the observation made earlier today that children do not have freedom of speech as much as adult.

Therefore, they’re not protected by the constitution.

I seriously doubt if the basis for the protection of the constitution rest on the freedom of choice of children that is that the assumption made by Mr. Justice Stewart that because adults have a greater freedom of choice therefore the children have to be protected.

Well, I’m not so sure that adults have that free to choice.

My opinion, people are great imitators, adult also sheep like everybody else and the tendency is to follow the leader.

I think the gist of the First Amendment is not that there is a freedom of choice in the (Inaudible) as there is a freedom of expression and the speaker was a writer or the publisher, that’s what we’re protecting.

There’s nothing in the constitution that speaks of the audience.

It’s good to turn in this argument to the beginning of the things and I start with Roth.

Roth —

Abe Fortas:

Before you do that I’m not sure I understand what you last said.

You mean the First Amendment does not protect anybody except the speaker?

Emanuel Redfield:

Yes sir.

Abe Fortas:

And that you can make any sort of — well, how do you fit that with your theory in this case that — then it would follow wouldn’t it that you can assess the scope of the police power of the state without reference to the First Amendment insofar as the issue relates to who may buy these magazines, they maybe so-called?

Emanuel Redfield:

Oh, I wasn’t approving any — I wasn’t approving any such doctrine that the —

Abe Fortas:

Well, I’m not asking you what you’re approving.

I’m asking you what you’re understanding is, which you — as you said that the —

Emanuel Redfield:

The First Amendment does direct, (Voice Overlap) —

Abe Fortas:

— the First Amendment does not protect the — a right to hear, a right to read —

Emanuel Redfield:

Right.

Abe Fortas:

— did you say that?

Emanuel Redfield:

I said that the First Amendment is directed to the rights of the speaker not so much as to the right of the individual or the regulation of the receiver of the information.

Abe Fortas:

Well then where does that lead you in this case then the police power of the state can operate within reasonable limits but without any special reference to the First Amendment.

I’m trying to understand you —

Emanuel Redfield:

Well, here — what my protection is here is the protection of the vendor which is the same as the First Amendment speech.

Abe Fortas:

What you’re saying then is that the protective interest, your submission is that the constitution protects not the child’s right to read but the vendor’s right to sell and the author’s derivative right to turn out this store?

Emanuel Redfield:

Yes.

Well —

Abe Fortas:

And so you relinquish any argument based upon the right of children or of adults for that not to read?

Emanuel Redfield:

Right.

Well, I meant that in this respect, I said that there were others who went further than I did in this case, the amicus and the (Inaudible) law review who say that the Gold case protects the right of the reader or the child in this case but I wasn’t pressing that issue, I on other hand was protecting the right of the vendor or the expresser of any idea.

So, I’d say this that the burden of proof as we know are the restraint on speech is of really a very heavy one and the burden is that of the state who would like to — who would restrain this right.

But in anticipation — in other words, I could say let’s wait in here from the state and see what they have to say on their side.

But in anticipation of that, I would like to raise these questions, where is this authority derived?

The constitution says, there shall be no abridgement to speech and then Roth, you said, “Well, so far as obscenity is concerned there has been a history although some have debated that history to respect you Justice Brennan”.

And the — so the question comes up, “Where in the constitution can you justify a restraint based upon the age of the reader?”

And I for myself cannot find such authority.

Hugo L. Black:

Let us suppose this is based on the premise that minors or at least — they’re only 16 or 18 have less IQ than those of others?

Emanuel Redfield:

Yes, so I thought it’s above that age.

Yes Your Honor.

Hugo L. Black:

So, really what they’re talking about here and all of these I presume is the kind to protect people with low IQs?

Emanuel Redfield:

Yes.

Emanuel Redfield:

And how you’re going to determine those IQs to begin with and how about those who are above the age, about 50-year-olds who don’t have the IQ and how about those who’ve set — 16 years who have the IQs?

Who is going to determine that and why should anybody be subjected to this?

And specially —

Hugo L. Black:

Well, I presume if you can — had the right to read it on the age, you can decide upon the IQs, isn’t that constitutionally?

Emanuel Redfield:

Well, whether — if that was so, I don’t know what we do about it — I mean I don’t know how we could administer such a law or how to or better yet how one could sell books on — or magazines under that type of the law.

Hugo L. Black:

I presume most everyone known people of 16 who had far more IQ or whatever that is, a man of 50.

Emanuel Redfield:

Yes.

Hugo L. Black:

Some men of 50?

Emanuel Redfield:

That’s what I’ve argued here.

And the — and oh, — and you could immediately see the Pandora’s Box that is being opened here and when you realize that the objectives of these law can never really be attained.

I argued in my brief that these objectives are not attained because the younger children could get them from elders, they can always find them around.

Secondly, what is even worst in order to prosecute anybody you’d have to do what you did in this case and that is involved the youngsters in the criminal court.

The youngster in this case was acted as a decoy in the case that was specially framed for the purposes of enforcing this law.

And of all the most remarkable things that I know of that an amicus brief in this case in opposition to my position the citizens with decent literature took the very same position that this law cannot be enforced and its worst than if there were no such law because the debasement of the child is a factor that is worst than the literature that they could read.

I have a great deal more to argue but my time is up Your Honor.

I’ll have to rely upon my brief.

Hugo L. Black:

May I ask you one — returning to your first argument, what page did you say it to be found on that the judge can rely not merely on the pictures of nudity but on the literature that was in the —

Emanuel Redfield:

Yes sir.

William J. Brennan, Jr.:

248 of the record.

Emanuel Redfield:

248, the last paragraph from the button of that page.

Hugo L. Black:

Alright.

Thank you.

Earl Warren:

Mr. Cahn.

William Cahn:

Mr. Chief Justice, may it please the Court.

William J. Brennan, Jr.:

What about this Cole and Arkansas point?

William Cahn:

Which is that the —

William J. Brennan, Jr.:

The — that he was convicted on something which he wasn’t charged?

William Cahn:

Oh, I don’t believe that’s quite sir correct because —

William J. Brennan, Jr.:

Well, that’s important, I mean —

William Cahn:

The (Inaudible)

William J. Brennan, Jr.:

If that were so, this couldn’t stand I take it, could it?

William Cahn:

Oh, I would agree Mr. Justice Brennan that the information specifically charges in —

Byron R. White:

Where is the (Voice Overlap) —

William Cahn:

— in the second count.

William J. Brennan, Jr.:

Page 4?

Earl Warren:

Three?

William J. Brennan, Jr.:

Page 4?

What language charges the written material?

William Cahn:

The language here suggests harmful to minor in the — and which taken as a whole is harmful to minors.

William J. Brennan, Jr.:

To minors?

And now, that incorporates the —

William Cahn:

The —

William J. Brennan, Jr.:

— the written as well as the —

William Cahn:

The written as well as the pictorial part (Voice Overlap) —

William J. Brennan, Jr.:

Now, why do you say that?

William Cahn:

Because the entire statute gives reference Mr. Justice Brennan in its description of what is the obscene.

William J. Brennan, Jr.:

Right.

Hugo L. Black:

That’s the statute but the charge doesn’t?

William Cahn:

The charge mentions in the second count.

The defendant did violate the provisions of the said Section 484-h subdivision 2(b) of the Penal Law and that the defendant knowingly — did knowingly sell to a minor a magazine which and taken as a whole is harmful to minors and I submit Your Honors that this applies to the written as well as to the pictorial part of the magazine.

I believe that the major issue on this appeal is whether a state may consistent with the Due Process Clause of the Fourteenth Amendment enact the law founded upon the variable obscenity concept prohibiting the commercial distribution to children under 17 years of age of materials obscene as to such children although not necessarily obscene as to adults.

And whether the statute in question Section 484-h of the Penal Law of the State of New York is a valid children’s obscenity law whether its phraseology is sufficiently definite.

Thurgood Marshall:

Mr. Cahn.

William Cahn:

Yes sir.

Thurgood Marshall:

How is it that New York has 17 and Dallas has 16?

William Cahn:

This is a matter for the legislature Mr. Justice Marshall —

Thurgood Marshall:

Out of the clear blue?

William Cahn:

Pardon?

Thurgood Marshall:

Out of the clear blue?

William Cahn:

Well, the legislature found it in its wisdom that the obscenity statute in reference to 484-h should apply to those under 17 and perhaps for different reasons in the State of Texas found that it should apply to those under 16 for the reason that — the states have considerate 21 to be the age for qualified voting rather than 15, 16, 17 or 18.

William Cahn:

I have no definite reason to give you as to why the state legislature saw fit to limit its exercise over children to the age of 17 rather than 16 or to 18 or to 19 or to any other age for that matter.

And if I may continue, the question is whether or not the statute’s phraseology is sufficiently definite to satisfy the minimum requirements of due process as they relate to obscenity and whether its scienter clause is objectionable or exerting an undue restraint on commercial distribution to adults of materials within the prohibition of 484-h.

484-h, a violation of which was punishable as a misdemeanor is a children’s obscenity law validly based on the variable obscenity concept approved by this Court in Mishkin against New York.

It was characterized as a children’s obscenity law by New York’s Highest Court, the Court of Appeals in the Bookcase Incorporated against Broderick case and this Court of course held in Mishkin that it will accept such a characterization.

I submit that the Court of Appeals characterization is correct since the statute’s definition of harmful to minors includes the elements of this Court’s definition of obscenity that is predominant, appeal to prurient interest, patent, offensiveness and absence of social importance with slight adjustments of wording necessary to relate and confined its prohibiting reach to children.

William J. Brennan, Jr.:

Well, Mr. Cahn, that being the — those being terms of the statute?

William Cahn:

Yes sir.

William J. Brennan, Jr.:

I’ve just looked at these magazines.

I think you’d agree limiting this now to the pictures for the moment that magazines precisely like this in the context of obscenity determinations of distribution to adults have been held by this Court in number of cases now to be not obscene.

William Cahn:

That is — there’s no question about it.

William J. Brennan, Jr.:

So, you got to say that although in their distribution to adults they are not obscene.

Nevertheless, we should fashion a principle that in their distribution to children under 17 they are obscene, is that it?

William Cahn:

Even though it does not — it is not obscene as to adults and adults in this particular statute are not bound by the rigid concepts established by the statute.

The Court of Appeals decided in the Broderick case rightly it is submitted that children were a recipient group within the Mishkin doctrine because they are the group to whom the objectionable material is directed or from whom it’s quarantined.

The Court may judicially notice I submit that these materials including girly magazines are directed to children.

Abe Fortas:

Now, why do you say that?

William Cahn:

Because experience is thought as —

Abe Fortas:

I know.

William Cahn:

— Mr. Justice Fortas that the teenager is the greatest market for these girly magazines.

Abe Fortas:

Is that in the record?

William Cahn:

It is submitted and suggested by the appellee’s brief.

Abe Fortas:

Well, it’s not.

Is there anything in the record because that’s surprising to me?

William Cahn:

No, there is none sir.

Abe Fortas:

There is none.

I have limited experience but I know it would not take judicial notice of that fact, is that what you’re suggesting?

William Cahn:

Well, I am suggesting that because of my own experience Your Honor I have found that —

Abe Fortas:

Well, these stories — is the written material in here to — on the level of what you commonly think of as boys, of course when I was younger, it was the (Inaudible) boys and things like that?

William Cahn:

Time has changed since then —

Abe Fortas:

Times had changed.

William Cahn:

— Mr. Justice Fortas.

Abe Fortas:

But is that so as a written material of the — what is specifically and specially a youthful kind?

William Cahn:

The magazines which we refer, the magazines in question are written and insofar as my own personal opinion is concerned with a direction toward the teenage market and not very bright teenagers at that.

Abe Fortas:

And what?

William Cahn:

And not very bright teenagers at that.

Abe Fortas:

Well, I — to me this is an important point and — but I don’t know that the — I would — the liberty to take your judgment for the — and the absence of anything in the record.

That is, I know of nothing so far as I have gone through the record here that would indicate that these magazines were specially prepared or specially directed for the — that segment of the population which is included in the statute?

William Cahn:

I might agree Mr. Justice Fortas but as I said it has appeared from the experience which I have had with dealers —

Abe Fortas:

Well, you might agree or you might not but there’s nothing in the record.

William Cahn:

Nothing in the record.

Abe Fortas:

Alright.

William Cahn:

There’s no question about that.

Now, I think that the Mishkin case holds that it will accept the characterization as placed upon the statute by the Court of Appeals.

And I have already mentioned the basis of the Court of Appeals characterization.

In the Mishkin and Ginzburg cases, I think that very frankly that the Court has noticed the prurient interest of these so-called girly magazines.

And in Mishkin, no psychiatric testimony or the light was presented to show that the material in question appealed to the prurient interest of pseudo masochist.

However, 484-h could’ve exercised its regulatory effect constitutionally even if it were not an obscenity law and thus the question of whether the state’s proof in this case satisfy the obscenity criteria of 484-h is not a federal question eligible for decision by this Court.

Since the people’s proof shows beyond a reasonable doubt sailed with the requisite scienter of nude photo magazine, nude photo magazines to a 16-year-old boy.

It has proved all that need to be proved to justify criminal punishment on constitutional grounds where the attribute of sovereignty on which the prosecution and statute is founded is the state’s power as parens patriae for the benefit of children.

Since 484-h is an obscenity law, I don’t believe the appellant can raise the First Amendment objections through it since under this Court’s holding in the Roth against the United States case, obscenity is not protected — is not protected expression.

The scienter provision knowingly is not invalid on its face because it will not restrict by indirect effect the flow of protected material to adults within the rationale of Smith against California.

This is so because most adults are patently over the age limit set out in 484-h under 17 years of age.

Thus dealers will not withhold sale to adults and will not fail to make a sale where the adult is a customer.

Moreover, the law provides for the defensive honest mistake as to age.

It follows that the deal who has made inquiry as to age and receive reassurance will rot — will rely on the honest mistake provision and will not hesitate to sell to an adult at all even if the dealer has not examined the working question.

In the few situations where age is in doubt, the buyer to whom allegedly the dealer might be hesitant to sell in the absence of an honest mistake provision as to age will usually not be an adult but instead will be a youngster.

Indeed, most youngsters in this marginal age group are so young that they have been included in 4 — that they could’ve have been included in 484-h’s prohibition without giving constitutional offense.

Thus, indirect restriction on distribution to them does not raise federal questions since they could be denied access by direct prohibition, it’s constitutionally indifferent whether the state has instead contrived this accepts — acceptable denial of access by indirect means.

There is nothing constitutionally objectionable in placing the burden of judgment on the book dealer and to require him to determine if the material sold by him comes within the prohibited class.

In Mishkin, this Court approved the New York statute namely Section 118 — 44 of Penal Law the old Section 1141, excuse me, which it viewed as placing the same burden of judgment on book dealers as on publishers.

William Cahn:

Appellants claimed in this regard a vagueness argument in disguise.

But this Court in effect has held that the definitions of obscenity in Roth against United States, Manual Enterprises against Day, Jacobellis against Ohio and the Mishkin, Ginzburg and Fanny Hill cases are adequate.

It follows that the definitions in 484-h give sufficiently definite noticed of what materials are within its prohibition and do not place an excessive burden on the deal.

Abe Fortas:

I don’t understand you sir because you are — I thought you agreed on response to the questions by Mr. Justice Brennan that these magazines would not be held obscene and therefore outside of the First Amendment protections in the case of an adults.

William Cahn:

That’s —

Abe Fortas:

So what comfort do you get out of Roth and all the rest of them?

You’ve got to go beyond that, don’t you, to take care of this particular case and say that two things are outside of the protection of the First Amendment.

Number one, the Roth type of thing as embellished by subsequent cases and number two, something that is less than Roth in the case of children, don’t you have to take that position?

William Cahn:

No, I — Mr. Justice Fortas, I agree that these magazines if sold to adults would not constitute a violation of any obscenity statute.

However, taking these magazines insofar as children are concerned I submit that they are obscene — that they have been held obscene by our State’s Highest Court in accordance with definitions set forth in Roth and the other cases with changes in phraseology limiting its application to children.

Abe Fortas:

And your state’s — from your state courts might have held that over and over again.But by on the basis of a colloquy between you and Mr. Justice Brennan, this Court would have to say that these particular magazines here are within the protection of the First Amendment if you relied only on Roth and our decisions today.

Now what you’re asking us to do and I perhaps you have to ask us to do is to come out with another category.

Category restricted to statutes dealing with children.

William Cahn:

Well, this is the —

Abe Fortas:

(Inaudible) in the statute, I certainly (Voice Overlap) —

William Cahn:

— variable concept doctrine, is it not —

Abe Fortas:

— would be straightened out on it.

William Cahn:

I believe that this is the variable concept doctrine Mr. Justice Fortas.

I maybe mistaken but I believe this concept definitely applies in this particular situation.

Abe Fortas:

Now, what is the — what would you add to the Roth definition or subtract on the Roth definition in the case of children or why do you say that these magazines although by hypothesis would not be held obscene in the case of adults should be held to be within the First Amendment — it should be held outside of the First Amendment protection in the case of children?

William Cahn:

Because taken as a whole these magazines are harmful to minors as our statute specifically states.

That the magazines in question, these magazines although not obscene to — insofar as adults are concern when taken into consideration in the juvenile area are harmful to minors.

Abe Fortas:

And what — and we have to sustain that as being sufficiently precise and not too broad or too vague for First Amendment purposes?

William Cahn:

Yes, because harmful — the terms in the statute are very explicitly explained each and every term used, nudity, sexual conduct, sexual excitement, sadomasochistic abuse, harmful to minors and prurient interest and so forth.

Each and every item to which the statute refers is clearly defined by the statute.

And the changes to which I refer making the overall magazine harmful to minors is that which I asked to this Court to take in to consideration to accept.

Hugo L. Black:

May I ask you if your court has ever sustained this particular charge made in count two, to the extent of saying that it charged anything more than the fact that these were bad because they add pictures of nude persons?

William Cahn:

Mr. Justice Black, I cannot honestly answer the question, I don’t know.

I —

Hugo L. Black:

I — as I read it, I read a different — draw a different inference to yours.

Hugo L. Black:

It seems to me, that what they are saying that taken as a whole these pictures of nude persons are harmful to minors.

William Cahn:

The magazine taken as a whole.

Hugo L. Black:

Well, I don’t find that.

William Cahn:

Oh, I see sir.

Hugo L. Black:

I haven’t been able to find (Inaudible), it seems to me like it means the other.

William Cahn:

I would have to (Voice Overlap) this Court —

Hugo L. Black:

Whatever construed it the other way.

William Cahn:

The —

Byron R. White:

Oh, I gather that under this — as I read the statute, nudity alone doesn’t — isn’t — is not proscribed.

I gather that its only nudity which is harmful to minors —

William Cahn:

True.

Byron R. White:

— and nudity which is harmful to minors has to be patently offensive —

William Cahn:

Patently offensive —

Byron R. White:

— to prevailing standards in the adult community as a whole with respect to what is suitable material for minors.

William Cahn:

That is correct and —

Byron R. White:

And is that really without redeeming social importance for minors.

William Cahn:

That is correct sir.

And so, under this particular statute great works of art would not be involved.

The nudity in the magazine must appeal to prurient interest must be without social importance.

Byron R. White:

I take it though the — any picture — any nude picture in a magazine would be bad under the statute?

William Cahn:

No sir, not any nude picture, the — these magazines which contained pictures of nudes we contend that we proved were directed to the prurient interest where without social value were provocative, were sexual — were for the purpose of sexually stimulated.

Thurgood Marshall:

And you got one in particular you could show us?

William Cahn:

The —

Thurgood Marshall:

I’d looked at all of them.

You got in one page you could suggest that that nude is different from the other nude?

William Cahn:

I don’t have the magazine with me at this time Mr. Justice Marshall.

Earl Warren:

Mr. Redfield, I had one there, some I guess, over there.

William Cahn:

The one in question?

I submit —

Thurgood Marshall:

Go ahead, do you have one?

William Cahn:

I submit that all of these pictures as they are, are for the purpose of sexual stimulation rather than for purposes of displaying great works of art —

Thurgood Marshall:

Then you say all nudes?

William Cahn:

All of these nudes in their positions, in their —

Thurgood Marshall:

Well, that —

William Cahn:

— provocative positions —

Thurgood Marshall:

I don’t see any difference from those nudes and all other nudes we’ve had come in through here?

William Cahn:

Insofar as children are concerned, Mr. Justice Marshall?

Thurgood Marshall:

We’ve been looking at them, to all of them, for children.

William Cahn:

Well, this is why —

Thurgood Marshall:

Well, I’m just trying to say, aren’t you actually saying that nude in and of itself is bad —

Byron R. White:

That’s what —

Thurgood Marshall:

— for children?

Byron R. White:

That’s really — I really, it’s a — I wonder if a statute wouldn’t reach all nude — any kind of a nude in that magazine?

William Cahn:

I respectfully must disagree with the —

Byron R. White:

Well, let me ask you.

What about the nudist magazines?

Which you’ve been held not obscene for adults, how do you think they would fair under —

William Cahn:

Mr. Justice White I have enough of a problem to cope with that which I have rather than to become a profit and I don’t know.

William O. Douglas:

Okay fine, thank You.

William Cahn:

This is really up to the Court’s to decide.

William J. Brennan, Jr.:

Well, I must say Mr. Cahn, I don’t know why you say that any picture in light of two ways instantly this is — this prosecutions under the 65 statute of course not under the amended 67 statute.

William Cahn:

That’s correct sir.

William J. Brennan, Jr.:

Now, they — as I read at page 29 I’m looking at Mr. Redfield’s brief.

The statute, unlawful for any person knowingly to sell or loan for monetary consideration of a minor any picture; skip the rest of it; or any photograph which depicts nudity and which is harmful to minors.

William Cahn:

And the harmful to minors is very vividly described in subdivision (f).

William J. Brennan, Jr.:

Yes.

It has to have all of the Roth elements.

William Cahn:

That’s correct sir.

But —

William J. Brennan, Jr.:

Any single picture, it would seem to me looking at A, that satisfied that description and this magazine even if none of the others did would support a prosecution under A, wouldn’t it?

William J. Brennan, Jr.:

As for a single picture —

William Cahn:

Yes.

If it violated the (Voice Overlap) —

William J. Brennan, Jr.:

That’s right, if it was harmful to minors with —

William Cahn:

Yes sir.

William J. Brennan, Jr.:

(Inaudible)

William Cahn:

I would say so.

William J. Brennan, Jr.:

No, so that the (Inaudible) taken as a whole is meaningless, isn’t it?

William Cahn:

Well, that’s in subdivision (a).

William J. Brennan, Jr.:

Well, I know but this gets me, that’s why I’m trouble by the Cole and Arkansas point.

I must say I have difficulty reading count two as drawing in what apparently the trial judge relied on, namely the written materials.

William Cahn:

Oh, I don’t think he relied on that.

I think he added that insofar as his judgment was concerned and I think he had absolutely every right to do so under the —

William J. Brennan, Jr.:

You say that what he did is merely surpluses that on the —

William Cahn:

No question about it because he found violation of paragraph A as well as paragraph D

And with the limited time left, may I discuss —

Byron R. White:

Could I just ask you —

William Cahn:

Yes sir.

Byron R. White:

— before you go on this — under the New York practice and under a suspended sentence may the defendant be called back into Court and sentenced later is that the end of the matter?

William Cahn:

If it’s a straight suspended sentence it’s over.

Byron R. White:

Its over.

William Cahn:

The sentence is finished.

Yes sir.

If provisions and limitations are set forth as under the suspended sentence —

Byron R. White:

But when he doesn’t impose the sentence and then suspended it?

William Cahn:

That’s correct sir.

Byron R. White:

But just suspend any sentencing, the case is over?

William Cahn:

That’s right.

Byron R. White:

So there is such a thing then as a final judgment suspending sentence.

William Cahn:

That’s correct.

Byron R. White:

I say and that’s what we have here?

William Cahn:

Yes sir.

Abe Fortas:

Well, does that have any consequence at all?

William Cahn:

I don’t see where it has.

Abe Fortas:

I mean, it’s just like a sort of reprimand, is that what you’re telling us?

William Cahn:

No.

I’m telling you that this was the punishment meted out by the Court.

They found it in his wisdom to give the defendant a straight suspended sentence.

Abe Fortas:

And what’s a straight suspended sentence?

William Cahn:

Just that sir.

Abe Fortas:

Does that mean that he can — ever be put in jail for this offense?

William Cahn:

No, no.

Abe Fortas:

Could he ever be fined for this?

William Cahn:

No, no sir.

Abe Fortas:

So it’s sort of a reprimand, is it?

William Cahn:

Well, it’s —

William J. Brennan, Jr.:

Well, why is he does — a year or so ago, we’ve dismissed a couple of case is here wherein a New York prosecution where the man had been fined but he had paid his fine.

We dismissed the case as moot.

Wouldn’t this be moved a fortiori under that?

William Cahn:

I — my distinguished colleague has called for a determination of the constitutionality of the statute —

William J. Brennan, Jr.:

Well, I know but that doesn’t require us to give it as the case is moot.

William Cahn:

I understand.

Whether the question is moot, I certainly submit is for this Court to decide.

William J. Brennan, Jr.:

What do you think?

William Cahn:

Well, I think we’ve come a long way for —

Potter Stewart:

You like it — everyone who comes here wants us to pass on some constitutional question, doesn’t it?

William Cahn:

I will say this —

Potter Stewart:

Whether do we have to or not?

William Cahn:

May I say this and in due respect; suspended sentence or no, this is a conviction of a misdemeanor of a crime on this man’s record.

And if by a judgment of this Court, it is erased I think it is the — his benefit.

Potter Stewart:

Well, but if — then you’re suggesting we are wrong a couple of terms ago when we dismissed this misdemeanor convictions where the fine had been paid.

And there were no civil disabilities or anything else (Voice Overlap) —

William Cahn:

Perhaps, Mr. Justice White this may be characterized as a more serious offense since it involves possibly moral turpitude and —

William J. Brennan, Jr.:

That’s what they were.

They were —

William Cahn:

Well, I don’t know the —

William J. Brennan, Jr.:

— obscenity convictions.

William Cahn:

Pardon?

They were obscenity —

William J. Brennan, Jr.:

They were obscenity convictions and a fine had been paid and we dismissed the cases as moot.

William Cahn:

Well certainly let me say this from myself.

If I had a misdemeanor conviction upon my record and I had the opportunity to have it erased, I would seek every available pathway toward that end.

William J. Brennan, Jr.:

That doesn’t answer whether or not those other cases are not precedents for dismissing this is moot.

William Cahn:

I can’t talk without seeing the cases themselves Mr. Justice Brennan.

I asked you to forgive me because I just don’t know the cases into which —

Byron R. White:

There would be a different proposition I suppose if this suspended — if these sentences could be imposed.

But if this —

William Cahn:

There is no sentence —

Byron R. White:

The case is over.

William Cahn:

— to be imposed Mr. Justice White.

The case insofar as punishment is concerned is completely over it.

And may I conclude by restating that it is perhaps impossible to determine or measure cause in the realm of social affairs.

It is especially difficult to determine with certainty whether exposure to certain types of influences gradually shapes character or morals in given ways since such shaping force such — since such shaping force works unobtrusively and does not manifest itself on dramatic incidents of cause and effect.

Thus, persons who demand certain scientific proof maybe asking the impossible.

Constitutional adjudication must be content with a lower order of demonstration or the community will be rendered helpless to protect itself against influences which common knowledge and much expert opinion brands is dangerous.

It should not be made to run the risk or to give itself to give itself to the uncertain rhythms of scientific progress.

Byron R. White:

Why?

William Cahn:

The greatest social thinker of our time Robert (Inaudible) has observed that knowledge in the social sciences will always be incomplete and imperfect.

I submit that the danger of these magazines insofar as juveniles are concerned has clearly been established and should be banned.

Abe Fortas:

In this record?

William Cahn:

Yes sir.

Abe Fortas:

Has been established in this record?

William Cahn:

The danger itself sir?

Abe Fortas:

Yes.

William Cahn:

No sir, in the cases that have gone here before.

Earl Warren:

Mr. Redfield.

Emanuel Redfield:

The few minutes, as to the question of mootness Your Honors on the very day that you dismissed those other cases, one was the Tannenbaum case and the — I forgot the name of the other one.

This case was granted review and the year had not passed under New York law in which there could be execution under that sentence.

So, well I’m not prepared —

Byron R. White:

Yes —

Emanuel Redfield:

— to argue that case now.

That —

Byron R. White:

I gathered from the state’s presentation that once that sentence was suspended, that was the end of the case —

Emanuel Redfield:

Oh, no, no.

Byron R. White:

And then, that (Voice Overlap) —

Emanuel Redfield:

Oh, no.

Byron R. White:

And then that — that no sentence could —

Emanuel Redfield:

I —

Byron R. White:

No sentence could be imposed.

Emanuel Redfield:

No, I wouldn’t go along with that because it’s a very same statute you had in the Tannenbaum case and in the other case —

Byron R. White:

Well, yes, but there they’ve —

Emanuel Redfield:

— within the year.

Byron R. White:

— been (Inaudible).

Emanuel Redfield:

Pardon?

Byron R. White:

If they could fine in Tannenbaum.

Emanuel Redfield:

Well, but —

William J. Brennan, Jr.:

They were only fine in those cases.

Emanuel Redfield:

Yes, yes, right.

But that wasn’t the gist of the decision.

The gist was that there could still have been execution within the year’s time and while it may — perhaps at this moment, I don’t know.

Emanuel Redfield:

I have to study the point.

William J. Brennan, Jr.:

Why?

Emanuel Redfield:

While at this moment, the year might have passed that the time you granted review certainly at the time when this case was lodged in this Court though the year have not passed.

Earl Warren:

Well, Mr. Redfield, I understand that counsel for the state to say that if he merely says suspended sentence without any particular sentence to be suspended but the case has ended then and there –(Voice Overlap) and do you say the opposite (Voice Overlap) —

Emanuel Redfield:

I wouldn’t accept that.

Earl Warren:

Alright, now could you both give us a brief memoranda —

Emanuel Redfield:

Alright.

Earl Warren:

— memorandum of the thing in the next day, two or three days.

Emanuel Redfield:

You really have it in the other cases because the law set forth (Voice Overlap) —

Earl Warren:

Well, I know but if it —

Emanuel Redfield:

Yes.

Earl Warren:

— simple, would you —

Emanuel Redfield:

I’ll be happy to.

Earl Warren:

So you’d give us a memorandum.

Emanuel Redfield:

Yes.

Earl Warren:

Please, both (Inaudible).

Hugo L. Black:

Would you say it now why you think it doesn’t end?

What else should be done to it?

Emanuel Redfield:

What else is to be done?

Hugo L. Black:

What else could be done?

Emanuel Redfield:

Well, at this moment, I’m not prepared to say that Your Honor because this is the point I haven’t even examined.

All I know is this man has this conviction against him and under New York law a second conviction would result in more serious punishment to him.

Hugo L. Black:

Well, that’s a different thing.

Emanuel Redfield:

Yes.

But aside —

William J. Brennan, Jr.:

Well, would you cover that, are you sure — well, I — I’d be interested with —

Emanuel Redfield:

Oh, yes, I’m (Voice Overlap) —

William J. Brennan, Jr.:

— whatever you’re going to submit —

Emanuel Redfield:

You have it (Voice Overlap) —

William J. Brennan, Jr.:

No, I’m interested in whatever you’re going to submit, what the consequences of this maybe.

Emanuel Redfield:

Yes.

William J. Brennan, Jr.:

If it’s a conviction for the purposes of an enhanced punishment on a second conviction that at least to me would be quite important.

Emanuel Redfield:

Yes.

You have that in the other case.

William J. Brennan, Jr.:

Well, will you cover it into your memorandum?

Mr. Cahn is shaking his hand — head vigorously that that isn’t so?

Emanuel Redfield:

Well, if you look at the record, let’s say in the Mishkin case for example, you had that situation where a second conviction led to a higher sentence — Mishkin have been convicted once before the case, he was in here before and (Voice Overlap) —

William J. Brennan, Jr.:

Was he here on a misdemeanor?

Emanuel Redfield:

He was (Inaudible) —

Byron R. White:

And what —

Emanuel Redfield:

And he got three years — pardon?

Byron R. White:

It may be different if a judge uses it in connection with sentences, with sentencing.

That may be different from the law requiring a higher sentence —

Emanuel Redfield:

Well, the law —

Byron R. White:

— because of the prior convictions.

Emanuel Redfield:

You mean, whether it’s compulsory or whether it’s discretionary to judge, is that what you mean?

Byron R. White:

Yes.

Emanuel Redfield:

Well, —

William J. Brennan, Jr.:

Well, whatever your state law is, I’m at least would be interested (Voice Overlap) —

Emanuel Redfield:

Yes.

I’ll be happy to present that but before I terminate, I’d like to point out something that is substantive interest and that is the reliance here upon Mishkin.

I don’t think this case has been disposed of by Mishkin.

First of all, in Mishkin you had a deviate class and it was not one of age.

In Mishkin, you have the books, the Court found that the books were directed toward this group and there were prurient appeal to that particular group.

He have an entirely different question of age, and Your Honor was very careful to point out to avoid Hicklin being revived by saying the following, “Since our holding requires that the recipient group be defined with more specificity than in terms of sexually immature persons, it also avoid the inadequacy of the most susceptible person facet of the Hicklin Rule”.

Thank you.