Ginsberg v. New York

LOCATION: Formerly Sam’s Stationery and Luncheonette

DECIDED BY: Warren Court (1967-1969)
LOWER COURT: State appellate court

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

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.


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?

Media for Ginsberg v. New York

Audio Transcription for Oral Argument - January 16, 1968 in Ginsberg v. New York

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.