Ginzburg v. United States ex rel. Mishkin/Opinion of the Court

by William J. Brennan, Jr.

United States Supreme Court

383 U.S. 463

Ralph GINZBURG et al., Petitioners,  v.  UNITED STATES. Edward MISHKIN, Appellant,

A judge sitting without a jury in the District Court for the Eastern District of Pennsylvania ^[1] convicted petitioner Ginzburg and three corporations controlled by him upon all 28 counts of an indictment charging violation of the federal obscenity statute, 18 U.S.C. § 1461 (1964 ed.). ^[2] 224 F.Supp. 129. Each count alleged that a resident of the Eastern District received mailed matter, either one of three publications challenged as obscene, or advertising telling how and where the publications might be obtained. The Court of Appeals for the Third Circuit affirmed, 338 F.2d 12. We granted certiorari, 380 U.S. 961, 85 S.Ct. 1103, 14 L.Ed.2d 152. We affirm. Since petitioners do not argue that the trial judge misconceived or failed to apply the standards we first enunciated in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 ^[3] the only serious question is whether those standards were correctly applied. ^[4]

In the cases in which this Court has decided obscenity questions since Roth, it has regarded the materials as sufficient in themselves for the determination of the question. In the present case, however, the prosecution charged the offense in the context of the circumstances of production, sale, and publicity and assumed that, standing alone, the publications themselves might not be obscene. We agree that the question of obscenity may include consideration of the setting in which the publications were presented as an aid to determining the question of obscenity, and assume without deciding that the prosecution could not have succeeded otherwise. As in Mishkin v. State of New York, 383 U.S. 502, 86 S.Ct. 958, and as did the courts below, 224 F.Supp., at 134, 338 F.2d, at 14-15, we view the publications against a background of commercial exploitation of erotica solely for the sake of their prurient appeal. ^[5] The record in that regard amply supports the decision of the trial judge that the mailing of all three publications offended the statute. ^[6]

The three publications were EROS, a hard-cover magazine of expensive format; Liaison, a bi-weekly newsletter; and The Housewife's Handbook on Selective Promiscuity (hereinafter the Handbook), a short book. The issue of EROS specified in the indictment, Vol. 1, No. 4, contains 15 articles and photo-essays on the subject of love, sex, and sexual relations. The specified issue of Liaison, Vol. 1, No. 1, contains a prefatory 'Letter from the Editors' announcing its dedication to 'keeping sex an art and preventing it from becoming a science.' The remainder of the issue consists of digests of two articles concerning sex and sexual relations which had earlier appeared in professional journals and a report of an interview with a psychotherapist who favors the broadest license in sexual relationships. As the trial judge noted, '(w)hile the treatment is largely superficial, it is presented entirely without restraint of any kind. According to defendants' own expert, it is entirely without literary merit.' 224 F.Supp., at 134. The Handbook purports to be a sexual autobiography detailing with complete candor the author's sexual experiences from age 3 to age 36. The text includes, and prefatory and concluding sections of the book elaborate, her views on such subjects as sex education of children, laws regulating private consensual adult sexual practices, and the equality of women in sexual relationships. It was claimed at trial that women would find the book valuable, for example as a marriage manual or as an aid to the sex education of their children.

Besides testimony as to the merit of the material, there was abundant evidence to show that each of the accused publications was originated or sold as stock in trade of the sordid business of pandering-'the business of purveying textual or graphic matter openly advertised to appeal to the erotic interest of their customers.' ^[7] EROS early sought mailing privileges from the postmasters of Intercourse and Blue Ball, Pennsylvania. The trial court found the obvious, that these hamlets were chosen only for the value their names would have in furthering petitioners' efforts to sell their publications on the basis of salacious appeal; ^[8] the facilities of the post offices were inadequate to handle the anticipated volume of mail, and the privileges were denied. Mailing privileges were then obtained from the postmaster of Middlesex, New Jersey. EROS and Liaison thereafter mailed several million circulars soliciting subscriptions from that post office; over 5,500 copies of the Handbook were mailed.

The 'leer of the sensualist' also permeates the advertising for the three publications. The circulars sent for EROS and Liaison stressed the sexual candor of the respective publications, and openly boasted that the publishers would take full advantage of what they regarded an unrestricted license allowed by law in the expression of sex and sexual matters. ^[9] The advertising for the Handbook, apparently mailed from New York, consisted almost entirely of a reproduction of the introduction of the book, written by one Dr. Albert Ellis. Although he alludes to the book's informational value and its putative therapeutic usefulness, his remarks are preoccupied with the book's sexual imagery. The solicitation was indiscriminate, not limited to those, such as physicians or phychiatrists, who might independently discern the book's therapeutic worth. ^[10] Inserted in each advertisement was a slip labeled 'GUARANTEE' and reading, 'Documentary Books, Inc. unconditionally guarantees full refund on the price of THE HOUSEWIFE'S HANDBOOK ON SELECTIVE PROMISCUITY if the book fails to reach you because of U.S. Post Office censorship interference.' Similar slips appeared in the advertising for EROS and Liaison; they highlighted the gloss petitioners put on the publications, eliminating any doubt what the purchaser was being asked to buy. ^[11]

This evidence, in our view, was relevant in determining the ultimate question of obscenity and, in the context of this record, serves to resolve all ambiguity and doubt. The deliberate representation of petitioners' publications as erotically arousing, for example, stimulated the reader to accept them as prurient; he looks for titillation, not for saving intellectual content. Similarly, such representation would tend to force public confrontation with the potentially offensive aspects of the work; the brazenness of such an appeal heightens the offensiveness of the publications to those who are offended by such material. And the circumstances of presentation and dissemination of material are equally relevant to determining whether social importance claimed for material in the courtroom was, in the circumstances, pretense or reality-whether it was the basis upon which it was traded in the market-place or a spurious claim for litigation purposes. Where the purveyor's sole emphasis is on the sexually provocative aspects of his publications, that fact may be decisive in the determination of obscenity. Certainly in a prosecution which, as here, does not necessarily imply suppression of the materials involved, the fact that they originate or are used as a subject of pandering is relevant to the application of the Roth test.

A proposition argued as to EROS, for example, is that the trial judge improperly found the magazine to be obscene as a whole, since he concluded that only four of the 15 articles predominantly appealed to prurient interest and substantially exceeded community standards of candor, while the other articles were admittedly non-offensive. But the trial judge found that '(t)he deliberate and studied arrangement of EROS is editorialized for the purpose of appealing predominantly to prurient interest and to insulate through the inclusion of non-offensive material.' 224 F.Supp., at 131. However erroneous such a conclusion might be if unsupported by the evidence of pandering, the record here supports it. EROS was created, represented and sold solely as a claimed instrument of the sexual stimulation it would bring. Like the other publications, its pervasive treatment of sex and sexual matters rendered it available to exploitation by those who would make a business of pandering to 'the widespread weakness for titillation by pornography.' ^[12] Petitioners' own expert agreed, correctly we think, that '(i)f the object (of a work) is material gain for the creator through an appeal to the sexual curiosity and appetite,' the work is pornographic. In other words, by animating sensual detail to give the publication a salacious cast, petitioners reinforced what is conceded by the Government to be an otherwise debatable conclusion.

A similar analysis applies to the judgment regarding the Handbook. The bulk of the proofs directed to social importance concerned this publication. Before selling publication rights to petitioners, its author had printed it privately; she sent circulars to persons whose names appeared on membership lists of medical and psychiatric associations, asserting its value as an adjunct to therapy. Over 12,000 sales resulted from this solicitation, and a number of witnesses testified that they found the work useful in their professional practice. The Government does not seriously contest the claim that the book has worth in such a controlled, or even neutral, environment. Petitioners, however, did not sell the book to such a limited audience, or focus their claims for it on its supposed therapeutic or educational value; rather, they deliberately emphasized the sexually provocative aspects of the work, in order to catch the salaciously disposed. They proclaimed its obscenity; and we cannot conclude that the court below erred in taking their own evaluation at its face value and declaring the book as a whole obscene despite the other evidence. ^[13]

The decision in United States v. Rebhuhn, 109 F.2d 512, is persuasive authority for our conclusion. ^[14] That was a prosecution under the predecessor to § 1461, brought in the context of pandering of publications assumed useful to scholars and members of learned professions. The books involved were written by authors proved in many instances to have been men of scientific standing, as anthropologists or psychiatrists. The Court of Appeals for the Second Circuit therefore assumed that many of the books were entitled to the protection of the First Amendment, and 'could lawfully have passed through the mails, if directed to those who would be likely to use them for the purposes for which they were written * * *.' 109 F.2d, at 514. But the evidence, as here, was that the defendants had not disseminated them for their 'proper use, but * * * woefully misused them, and it was that misuse which constituted the gravamen of the crime.' Id., at 515. Speaking for the Court in affirming the conviction, Judge Learned Hand said:

'* * * (T)he works themselves had a place, though a limited one, in anthropology and in psychotherapy. They might also have been lawfully sold to laymen who wished seriously to study the sexual practices of savage or barbarous peoples, or sexual aberrations; in other words, most of them were not obscene per se. In several decisions we have held that the statute does not in all circumstances forbid the dissemination of such publications. * * * However, in the case at bar, the prosecution succeeded * * * when it showed that the defendants had indiscriminately flooded the mails with advertisements, plainly designed merely to catch the prurient, though under the guise of distributing works of scientific or literary merit. We do not mean that the distributor of such works is charged with a duty to insure that they shall reach only proper hands, nor need we say what care he must use, for these defendants exceeded any possible limit; the circulars were no more than appeals to the salaciously disposed, and no (fact finder) could have failed to pierce the fragile screen, set up to cover that purpose.' 109 F.2d, at 514-515.

We perceive no threat to First Amendment guarantees in thus holding that in close cases evidence of pandering may be probative with respect to the nature of the material in question and thus satisfy the Roth test. ^[15] No weight is ascribed to the fact that petitioners have profited from the sale of publications which we have assumed but do not hold cannot themselves be adjudged obscene in the abstract; to sanction consideration of this fact might indeed induce self-censorship, and offend the frequently stated principle that commercial activity, in itself, is no justification for narrowing the protection of expression secured by the First Amendment. ^[16] Rather, the fact that each of these publications was created or exploited entirely on the basis of its appeal to prurient interests ^[17] strengthens the conclusion that the transactions here were sales of illicit merchandise, not sales of constitutionally protected matter. ^[18] A conviction for mailing obscene publications, but explained in part by the presence of this element, does not necessarily suppress the materials in question, nor chill their proper distribution for a proper use. Nor should it inhibit the enterprise of others seeking through serious endeavor to advance human knowledge or understanding in science, literature, or art. All that will have been determined is that questionable publications are obscene in a context which brands them as obscene as that term is defined in Roth-a use inconsistent with any claim to the shelter of the First Amendment. ^[19] 'The nature of the materials is, of course, relevant as an attribute of the defendant's conduct, but the materials are thus placed in context from which they draw color and character. A wholly different result might be reached in a different setting.' Roth v. United States, 354 U.S., at 495, 77 S.Ct., at 1315 (Warren, C.J., concurring).

It is important to stress that this analysis simply elaborates the test by which the obscenity vel non of the material must be judged. Where an exploitation of interests in titillation by pornography is shown with respect to material lending itself to such exploitation through pervasive treatment or description of sexual matters, such evidence may support the determination that the material is obscene even though in other contexts the material would escape such condemnation.

Petitioners raise several procedural objections, principally directed to the findings which accompanied the trial court's memorandum opinion, Fed.Rules Crim.Proc. 23. Even on the assumption that petitioners' objections are well taken, we perceive no error affecting their substantial rights.

Affirmed.

Mr. Justice BLACK, dissenting.

Notes

1. No challenge was or is made to venue under 18 U.S.C. § 3237 (1964 ed.).
2. The federal obscenity statute, 18 U.S.C. § 1461, provides in pertinent part:
3. We are not, however, to be understood as approving all aspects of the trial judge's exegesis of Roth, for example his remarks that 'the community as a whole is the proper consideration. In this community, our society, we have children of all ages, psychotics, feeble-minded and other susceptible elements. Just as they cannot set the pace for the average adult reader's taste, they cannot be overlooked as part of the community.' 224 F.Supp., at 137. Compare Butler v. State of Michigan, 352 U.S. 380, 77 S.Ct. 524, 1 L.Ed.2d 412.
4. The Government stipulated at trial that the circulars advertising the publications were not themselves obscene; therefore the convictions on the counts for mailing the advertising stand only if the mailing of the publications offended the statute.
5. Our affirmance of the convictions for mailing EROS and Liaison is based upon their characteristics as a whole, including their editorial formats, and not upon particular articles contained, digested, or excerpted in them. Thus we do not decide whether particular articles, for example, in EROS, although identified by the trial judge as offensive, should be condemned as obscene whatever their setting. Similarly, we accept the Government's concession, note 13, infra, that the prosecution rested upon the manner in which the petitioners sold the Handbook; thus our affirmance implies no agreement with the trial judge's characterizations of the book outside that setting.
6. It is suggested in dissent that petitioners were unaware that the record being established could be used in support of such an approach, and that petitioners should be afforded the opportunity of a new trial. However, the trial transcript clearly reveals that at several points the Government announced its theory that made the mode of distribution relevant to the determination of obscenity, and the trial court admitted evidence, otherwise irrelevant, toward that end.
7. Roth v. United States, supra, 354 U.S., at 495-496, 77 S.Ct., at 1314-1315 (Warren, C.J., concurring).
8. Evidence relating to petitioners' efforts to secure mailing privileges from these post offices was, contrary to the suggestion of Mr. JUSTICE HARLAN in dissent, introduced for the purpose of supporting such a finding. Scienter had been stipulated prior to trial. The
9. Thus, one EROS advertisement claimed:
10. Note 13, infra.
11. There is much additional evidence supporting the conclusion of petitioners' pandering. One of petitioners' former writers for Liaison, for example, testified about the editorial goals and practices of that publication.
12. Schwartz, Morals Offenses and the Model Penal Code, 63 Col.L.Rev. 669, 677 (1963).
13. The Government drew a distinction between the author's and petitioners' solicitation. At the sentencing proceeding the United States Attorney stated:
14. The Proposed Official Draft of the ALI Model Penal Code likewise recognizes the question of pandering as relevant to the obscenity issue, § 251.4(4); Tentative Draft No. 6 (May 6, 1957), at 1-3, 13-17, 45-46, 53; Schwartz, supra, n. 12; see Craig, Suppressed Books, 195-206 (1963). Compare Grove Press, Inc. v. Christenberry, 175 F.Supp. 488, 496-497 (D.C.S.D.N.Y.1959), aff'd 276 F.2d 433 (C.A.2d Cir. 1960); United States v. One Book Entitled Ulysses, 72 F.2d 705, 707 (C.A.2d Cir. 1934), affirming 5 F.Supp. 182 (D.C.S.D.N.Y.1933). See also The Trial of Lady Chatterly-Regina v. Penguin Books, Ltd. (Rolph. ed. 1961).
15. Our conclusion is consistent with the statutory scheme. Although § 1461, in referring to 'obscene * * * matter' may appear to deal with the qualities of material in the abstract, it is settled that the mode of distribution may be a significant part in the determination of the obscenity of the material involved. United States v. Rebhuhn, supra. Because the statute creates a criminal remedy, cf. Manual Enterprises v. Day, 370 U.S. 478, 495, 82 S.Ct. 1432, 1441, 8 L.Ed.2d 639, (opinion of Brennan, J.), it readily admits such an interpretation, compare United States v. 31 Photographs, etc., 156 F.Supp. 350 (D.C.S.D.N.Y.1957).
16. See New York Times Co. v. Sullivan, 376 U.S. 254, 265 266, 84 S.Ct. 710, 718, 11 L.Ed.2d 686; Smith v. People of State of California, 361 U.S. 147, 150, 80 S.Ct. 215, 217, 4 L.Ed.2d 205.
17. See Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262, where the Court viewed handbills purporting to contain protected expression as merely commercial advertising. Compare that decision with Jamison v. State of Texas, 318 U.S. 413, 63 S.Ct. 669, 87 L.Ed. 869, and Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292, where speech having the characteristics of advertising was held to be an integral part of religious discussions and hence protected. Material sold solely to produce sexual arousal, like commercial advertising, does not escape regulation because it has been dressed up as speech, or in other contexts might be recognized as speech.
18. Compare Breard v. City of Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233, with Martin v. City of Struthers, 319 U.S. 141, 63 S.Ct. 862, 87 L.Ed. 1313. Cf. Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513; Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834; Cox v. State of Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471; 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487.
19. One who advertises and sells a work on the basis of its prurient appeal is not threatened by the perhaps inherent residual vagueness of the Roth test, cf. Dombrowski v. Pfister, 380 U.S. 479, 486-487, 491-492, 85 S.Ct. 1116, 1120-1121, 1123-1124, 14 L.Ed.2d 22; such behavior is centrol to the objectives of criminal obscenity laws. ALI Model Penal Code, Tentative Draft No. 6 (May 6, 1957), pp. 1-3, 13-17; Comments to the Proposed Official Draft § 251.4, supra; Schwartz, Morals Offenses and the Model Penal Code, 63 Col.L.Rev. 669, 677-681 (1963); Paul & Schwartz, Federal Censorship-Obscenity in the Mail, 212-219 (1961); see Mishkin v. State of New York, 383 U.S. 502, at 507, n. 5, 86 S.Ct. 958, at 962.