Mishkin v. New York

PETITIONER: Edward Mishkin
RESPONDENT: New York
LOCATION: Former Location of Publishers' Outlet

DOCKET NO.: 49
DECIDED BY: Warren Court (1965-1967)
LOWER COURT:

CITATION: 383 US 502 (1966)
ARGUED: Dec 07, 1965
DECIDED: Mar 21, 1966
GRANTED: Apr 05, 1965

ADVOCATES:
Emanuel Redfield - for the petitioner
H. Richard Uviller - for the respondent

Facts of the case

On December 29, 1959, New York City police officers entered the Publishers Outlet, where they seized a number of books and magazines. On January 12, 1960, the police raided the basement below a printing shop belonging to Norman Levenberg. The police discovered, through Levenberg, that a number of books were kept for Edward Mishkin in a storage room. Also that day, officers entered Midget Book Shop, where they seized an additional number of books and magazines. On February 10, 1960, the police confiscated three books from the Main Stern Book Store. Levenberg later testified that Mishkin controlled all of the books, and that he operated both the Publishers’ Outlet and the Main Stern Book Store; officers indeed encountered Mishkin at both stores. In all, the police seized fifty books allegedly possessed by Mishkin.

The seized books were paper-bound “pulps,” and most had jackets with illustrations relating to the fictional subject matter within. The covers of nineteen of the books displayed illustrations of women being whipped, beaten, tortured or abused. Most of the book jackets depicted symbols associated with fetishism, such as leather boots, excessively tight clothing, black gloves, whips, masks and corsets. Some presented incidents of sexual seduction, transvestism, sodomy, rape and masturbation.

The state of New York charged Mishkin with multiple counts of possessing obscene books, of hiring others to prepare obscene books, and of publishing obscene books. At trial, authors who worked under Mishkin for several years testified that he instructed them to fill the books with strong sexual material. Mishkin was convicted before a three-judge panel of the Court of Special Sessions. He was sentenced to a three-year prison term and ordered to pay $12,000 in fines. The appellate court affirmed Mishkin’s sentence, modifying the judgment to remove charges related to Mishkin’s failure to print the name and address of the publisher or printer on the books; the court held the statute requiring this action to be unconstitutional. The Court of Appeals of New York affirmed the judgment, holding that the New York law forbidding obscene material itself did not violate Mishkin’s constitutional rights and was not unconstitutionally vague.

Question

  1. Was New York’s anti-obscenity statute impermissibly vague?
  2. Were Mishkin’s books properly found to be obscene?
  3. Must the government show that Mishkin knew the books were obscene?

Media for Mishkin v. New York

Audio Transcription for Oral Argument - December 07, 1965 in Mishkin v. New York

Earl Warren:

Number 49, Edward Mishkin versus New York.

Mr. Redfield.

Emanuel Redfield:

Mr. Chief Justice, the Honorable Court.

This case, Your Honors, brings up broader questions of constitutional law than was involved in the case you just heard and I assume in the case following me.

This case brings up three novel constitutional questions which are just begging for resolution, and it also brings up other questions of constitutional importance which are not novel but which certainly go toward the question as to whether or not this man's right of publication should be met with a sentence of three years in jail and a fine of $12,000.

The three novel constitutional questions as I see them are -- may books that are devoted to descriptions and narrations of sadism and masochism, may they be proscribed?

The second question is, are these phrases sadistic and masochistic as used in the statute vague?

And, the third is a question that was lift over by Smith against California, and that is a question of scienter, the question what knowledge does the purveyor have to know in order that he may be punished for violating the statute?

Under the second question, Mr. Redfield, am I right to conclude the question was heard in the trial court (Inaudible)

Emanuel Redfield:

Yes, sir.

And, you say -- you say that the (Inaudible) were masochistic and so forth on its content -- the content?

Emanuel Redfield:

That's what it says.

And obscene?

Emanuel Redfield:

Yes, sir, that's what he said and he relied upon another opinion of a Co-coordinate Judge, and I do not feel that that has resolved a problem because I do not think we have an authoritative construction by the highest court of the state whom which this appeal has come.

The Court of Appeals has never got it?

Emanuel Redfield:

No sir.

And we are in the worst position than we were here in the Winters case because at least in the Winters case we had a construction by the highest court of the state.

The Court of Appeals did deny reviewing it?

Emanuel Redfield:

No, sir.

It did review but it affirmed -- it affirmed without opinion.

It affirmed without opinion.

Emanuel Redfield:

And it affirmed both in my case and it affirmed the appeal taken by the people and -- which you're not concerned with here.

Yes.

Emanuel Redfield:

So, I won't go into it.

The other questions that are before Your Honors, other than these novel questions, is this -- “Are these books obscene?”

And “Is the statute of the State of New York as construed by the courts, vague and uncertain?”

And thirdly, is a question left by reason of the fact that Mapp decision came after these cases were decided and we have a serious question of search and seizure here.

Now, I believe and I hope that the court could resolve all these problems and I know it's quite a job and, after being before this Court for more than 30 years, I've never yet been able to penetrate the mysteries of the ground that the court selects for its decision on whenever there are competing constitutional questions, but I must say that from what I've observed in the courts of the State of New York and the courts of other jurisdictions in which I was counsel and otherwise, that there is a great need that these questions be resolved now.

Now, as I said before, this man got a three-year jail sentence and a $12,000 fine for putting out these books.

I will not say that these books are great bits of learning nor even interesting to me or to others, but there are probably some who like to read it and --