Ginzburg v. United States

PETITIONER: Ginzburg
RESPONDENT: United States
LOCATION: General Petroleum Corporation

DOCKET NO.: 42
DECIDED BY: Warren Court (1965-1967)
LOWER COURT: United States Court of Appeals for the Third Circuit

CITATION: 383 US 463 (1966)
ARGUED: Dec 07, 1965
DECIDED: Mar 21, 1966

Facts of the case

Ralph Ginzburg and several of his associates were charged with violating a federal obscenity statute for mailing circulars about how and where three different obscene publications could be obtained. Ginzburg challenged his conviction as unconstitutional since the circulars themselves were not obscene. On appeal from an adverse ruling by the Third Circuit Court of Appeals, upholding an unfavorable lower court finding, the Supreme Court granted Ginzburg certiorari.

Question

Does conviction under the federal obscenity statute, for pandering advertisements for sexually explicit publications, violate of the First Amendment's free speech protections if the advertisements are not themselves obscene?

Media for Ginzburg v. United States

Audio Transcription for Oral Argument - December 07, 1965 in Ginzburg v. United States

Earl Warren:

Number 42, Ralph Ginzburg et al, Petitioner, versus United States.

Mr. Spritzer.

Spritzer:

Mr. Chief Justice, may it please the Court.

I move the admission of Paul Bender of the District of Columbia Bar for purposes of arguing this cause on behalf of the United States.

Earl Warren:

Motion is granted.

Mr. Dickstein.

Sydney Dickstein:

May it please the Court.

This case is here on writ of certiorari to the Court of Appeals for the Third Circuit which affirmed petitioner's convictions for mailing three publications held to be obscene.

Petitioner Ginzburg was sentenced to five years imprisonment and fined a total of $28,000.

The major issue in this case is whether these publications are obscene.

We and the Government agree that in order for a work to be obscene it must be without redeeming social importance, it must make its predominant appeal to prurient interest, and it must be patently offense.

We say that none of the elements that identify obscenity are present in any of the publications in this case.

Potter Stewart:

Your view that all of those elements have to coincide to constitute obscenity or that if any one of the elements exist?

Sydney Dickstein:

No Your Honor, it's our view that all of these elements must coalesce in a single work in order for it to be proscribable obscenity.

As to the element of redeeming social importance, the court below, the trial court found as did the Courts of Appeal -- Court of Appeals that none of these publications had the slightest social value, had any redeeming social importance, whatever.

Here in this Court, the Government does not defend those findings.

It admits doubt as to whether EROS is without redeeming social importance.

It concedes that the major portion of liaison that is the 2.5 page report of the interview with the well-known psychologist, Dr. Albert Ellis constitutes serious and protected advocacy.

And so rather than ask this Court to conclude that these works are without redeeming social importance when considered as a whole, the Government asked the Court to dissect these two publications, article by article and consider each article as if it might be an independent obscene work.

In this case, the door was closed to that approach before the trial even begun.

Petitioners asked for a bill of particulars in which the Government would be requested to state whether the indictment charge that the alleged nonmailable material was obscene when considered as a whole, or if it not whether part or parts of them were alleged to be obscene and if so, to state which parts.

Now, in lieu of the bill of particulars, the Government stipulated that the indictment charges that each of the alleged nonmailable material is obscene when considered as a whole.

And when we consider EROS and Liaison as a whole, we think it clear that they do have redeeming social importance and so as to those publications, this element is simply not present.

With respect to the third work, the Housewife's Handbook on selective promiscuity, here too the Government says that the lack of redeeming importance in this work maybe open to question and that the entire issue of its obscenity is a matter of legitimate debate, that's the position they assert here.

The claims for redeeming social importance of the Handbook were three.

First, as a true author biographical account of a woman sexually experienced as in attitudes, it provided needed information.

Secondly, it had been found useful or reading of the work had been found useful to some people particularly women whose normal sexual drives beset them with feelings of guilt and anxiety.

Here, was another woman talking to them and saying, ?This is the way I feel.

You are not alone in this world.

You need not live solely within the confines of your own mind.?