Ginsberg v. New York

Ginsberg v. New York, 390 U.S. 629 (1968), was a United States Supreme Court case in which the Court ruled that material that is not obscene may nonetheless be harmful for children, and its marketing may be regulated.

Ginsberg v. New York
Supreme Court of the United States
Argued January 16, 1968 Decided April 22, 1968
Full case name	Sam Ginsberg, Appellant v. State of New York
Citations	390 U.S. 629 (more) 88 S. Ct. 1274; 20 L. Ed. 2d 195; 1968 U.S. LEXIS 1880; 44 Ohio Op. 2d 339; 1 Media L. Rep. 1424
Holding
Material that is not obscene for adults may still be considered obscene towards minors and regulated
Court membership
Chief Justice Earl Warren Associate Justices Hugo Black · William O. Douglas John M. Harlan II · William J. Brennan Jr. Potter Stewart · Byron White Abe Fortas · Thurgood Marshall
Case opinions
Majority	Brennan, joined by Warren, White, Marshall
Concurrence	Harlan
Concurrence	Stewart
Dissent	Douglas, joined by Black
Dissent	Fortas
Laws applied
U.S. Const. amend. I

Background

Under New York law, it was illegal to willfully sell to a minor under 17 any picture that depicts nudity, is harmful to minors, and any magazine taken as a whole is harmful to minors.

Sam Ginsberg and his wife operated Sam's Stationery and Luncheonette in Bellmore, Long Island. In it they sold magazines including those deemed to be pornographic. He was prosecuted from two informants who testified that Ginsberg personally sold two 16-year-old boys the magazines containing pornographic images of women, both called "Sir", and, "Mr" Annual. It was insisted upon by their parents to buy them so they could lay the grounds for prosecution. He was tried in Nassau County District Court and found guilty. The court had found that the pictures were harmful to minors under the law.

The conviction was upheld by the Appellate Term of the Supreme Court of New York and was denied an appeal to the New York Court of Appeals.

Ginsberg argued before the court that the State of New York did not have the power to classify two different sets of the population in regards to obscene material and that it was an unconstitutional deprivation of liberty. He cited Meyer v. Nebraska, Pierce v. Society of Sisters and Prince v. Massachusetts, in all of which cases the court sided with the minors.

Opinion of the Court

Justice Brennan delivered the opinion of the court. The court rejected Ginsberg's argument that New York had deprived minors of their liberty. The court found that it was well within the state's power to protect minors and that just because the material is not classified as obscene to adults it may still be regulated with minors.

Dissent

Justice Douglas wrote a dissent where he strongly objected to the majority's decision. He found the First Amendment to be an absolute that harbored no exclusion for the obscenity that the rest of the court had found. While he admitted that the material that had been sold to minors could be harmful, Douglas was concerned that the ruling would set a precedent that could be perpetuated to "protect" other segments of society from anything the government might deem obscene. He finished by saying the definition of obscenity is impossible to determine because it is highly subjective and laments that the court is forced to sit as the nation's board of censors.

See also

• List of United States Supreme Court cases, volume 390
• List of United States Supreme Court cases by the Warren Court
• List of United States Supreme Court cases involving the First Amendment

External links

• Works related to Ginsberg v. New York at Wikisource
• Text of Ginsberg v. New York, 390 U.S. 629 (1968) is available from: Findlaw Google Scholar Justia OpenJurist
• Ginsberg v. New York, www.oyez.org