Ginzburg v. United States ex rel. Mishkin/Dissent Harlan
Mr. Justice HARLAN, dissenting.
I would reverse the convictions of Ginzburg and his three corporate codefendants. The federal obscenity statute under which they were convicted, 18 U.S.C. § 1461 (1964 ed.), is concerned with unlawful shipment of 'nonmailable' matter. In my opinion announcing the judgment of the Court in Manual Enterprises, Inc. v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639, the background of the statute was assessed, and its focus was seen to be solely on the character of the material in question. That too has been the premise on which past cases in this Court arising under this statute, or its predecessors, have been decided. See, e.g., Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498. I believe that under this statute the Federal Government is constitutionally restricted to banning from the mails only 'hardcore pornography,' see my separate opinion in Roth, supra, at 507, 77 S.Ct., at 1320, and my dissenting opinion in A Book Named 'John Cleland's Memoirs' v. Attorney General, 383 U.S. 455, 86 S.Ct. 996. Because I do not think it can be maintained that the material in question here falls within that narrow class, I do not believe it can be excluded from the mails.
The Court recognizes the difficulty of justifying these convictions; the majority refuses to approve the trial judge's 'exegesis of Roth' (note 3, 383 U.S. 465, 86 S.Ct. 944); it declines to approve the trial court's 'characterizations' of the Handbook 'outside' the 'setting' which the majority for the first time announces to be crucial to this conviction (note 5, 383 U.S. 466, 86 S.Ct. 945). Moreover, the Court accepts the Government's concession that the Handbook has a certain 'worth' when seen in something labeled a 'controlled, or even neutral, environment' (383 U.S. 472, 86 S.Ct. 948); the majority notes that these are 'publications which we have assumed * * * cannot themselves be adjudged obscene in the abstract' (383 U.S. 474, 86 S.Ct. 949). In fact, the Court in the last analysis sustains the convictions on the express assumption that the items held to be obscene are not, viewing them strictly, obscene at all (383 U.S. 466, 86 S.Ct. 945).
This curious result is reached through the elaboration of a theory of obscenity entirely unrelated to the language, purposes, or history of the federal statute now being applied, and certainly different from the test used by the trial court to convict the defendants. While the precise holding of the Court is obscure, I take it that the objective test of Roth, which ultimately focuses on the material in question, is to be supplemented by another test that goes to the question whether the mailer's aim is to 'pander' to or 'titillate' those to whom he mails questionable matter.
Although it is not clear whether the majority views the panderer test as a statutory gloss or as constitutional doctrine, I read the opinion to be in the latter category.  The First Amendment, in the obscenity area, no longer fully protects material on its face nonobscene, for such material must now also be examined in the light of the defendant's conduct, attitude, motives. This seems to me a mere euphemism for allowing punishment of a person who mails otherwise constitutionally protected material just because a jury or a judge may not find him or his business agreeable. Were a State to enact a 'panderer' statute under its police power, I have little doubt that-subject to clear drafting to avoid attacks on vagueness and equal protection grounds-such a statute would be constitutional. Possibly the same might be true of the Federal Government acting under its postal or commerce powers. What I fear the Court has done today is in effect to write a new statute, but without the sharply focused definitions and standards necessary in such a sensitive area. Casting such a dubious gloss over a straightforward 101-year-old statute (see 13 Stat. 507) is for me an astonishing piece of judicial improvisation.
It seems perfectly clear that the theory on which these convictions are now sustained is quite different from the basis on which the case was tried and decided by the District Court and affirmed by the Court of Appeals.  The District Court found the Handbook 'patently offensive on its face' and without 'the slightest redeeming social, artistic or literary importance or value'; it held that there was 'no credible evidence that The Handbook has the slightest valid scientific importance for treatment of individuals in clinical psychiatry, psychology, or any field of medicine.' 224 F.Supp. 129, 131. The trial court made similar findings as to Eros and Liaison. The majority's opinion, as I read it, casts doubts upon these explicit findings. As to the Handbook, the Court interprets an offhand remark by the government prosecutor at the sentencing hearing as a 'concession,' which the majority accepts, that the prosecution rested upon the conduct of the petitioner, and the Court explicitly refuses to accept the trial judge's 'characterizations' of the book, which I take to be an implied rejection of the findings of fact upon which the conviction was in fact based (note 5, 383 U.S. 466, 86 S.Ct. 945). Similarly as to Eros, the Court implies that the finding of obscenity might be 'erroneous' were it not supported 'by the evidence of pandering' (383 U.S. 471, 86 S.Ct. 947). The Court further characterizes the Eros decision, aside from pandering, as 'an otherwise debatable conclusion' (383 U.S. 471, 86 S.Ct. 948).
If there is anything to this new pandering dimension to the mailing statute, the Court should return the case for a new trial, for petitioners are at least entitled to a day in court on the question on which their guilt has ultimately come to depend. Compare the action of the Court in A Book Named 'John Cleland's Memoirs' v. Attorney General, 383 U.S. 413, 86 S.Ct. 975, also decided today, where the Court affords the State an opportunity to prove in a subsequent prosecution that an accused purveyor of Fanny Hill in fact used pandering methods to secure distribution of the book.
If a new trial were given in the present case, as I read the Court's opinion, the burden would be on the Government to show that the motives of the defendants were to pander to 'the widespread weakness for titillation by pornography' (383 U.S. 471, 86 S.Ct. 947). I suppose that an analysis of the type of individuals receiving Eros and the Handbook would be relevant. If they were ordinary people, interested in purchasing Eros or the Handbook for one of a dozen personal reasons, this might be some evidence of pandering to the general public. On the other hand, as the Court suggests, the defendants could exonerate themselves by showing that they sent these works only or perhaps primarily (no standards are set) to psychiatrists and other serious-minded professional people. Also relevant would apparently be the nature of the mailer's advertisements or representations. Conceivably someone mailing to the public selective portions of a recognized classic with the avowed purpose of titillation would run the risk of conviction for mailing nonmailable matter. Presumably the Post Office under this theory might once again attempt to ban Lady Chatterley's Lover, which a lower court found not bannable in 1960 by an abstract application of Roth. Grove Press, Inc. v. Christenberry, 276 F.2d 433. I would suppose that if the Government could show that Grove Press is pandering to people who are interested in the book's sexual passages and not in D. H. Lawrence's social theories or literary technique § 1461 could properly be invoked. Even the well-known opinions of Judge A. N. Hand in United States v. One Book Entitled Ulysses, 72 F.2d 705, and of Judge Woolsey in the District Court, 5 F.Supp. 182, might be rendered nugatory if a mailer of Ulysses is found to be titillating readers with its 'coarse, blasphemous, and obscene' portions, 72 F.2d, at 707, rather than piloting them through the intricacies of Joyce's stream of consciousness.
In the past, as in the trial of these petitioners, evidence as to a defendant's conduct was admissible only to show relevant intent.  Now evidence not only as to conduct, but also as to attitude and motive, is admissible on the primary question of whether the material mailed is obscene. I have difficulty seeing how these inquiries are logically related to the question whether a particular work is obscene. In addition, I think such a test for obscenity is impermissibly vague, and unwarranted by anything in the First Amendment or in 18 U.S.C. § 1461.
I would reverse the judgment below.
- The prevailing opinion in A Book Named 'John Cleland's Memoirs' v. Attorney General, 383 U.S. 413, 86 S.Ct. 975, makes clearer the constitutional ramifications of this new doctrine.
- Although at one point in its opinion the Court of Appeals referred to 'the shoddy business of pandering,' 338 F.2d 12, 15, a reading of the opinion as a whole plainly indicates that the Court of Appeals did not affirm these convictions on the basis on which this Court now sustains them.
- To show pandering, the Court relies heavily on the fact that the defendants sought mailing privileges from the postmasters of Intercourse and Blue Ball, Pennsylvania, before settling upon Middlesex, New Jersey, as a mailing point (383 U.S., pp. 467-468, 86 S.Ct., pp. 945-946). This evidence was admitted, however, only to show required scienter, see 338 F.2d 12, 16. On appeal to the Court of Appeals and to this Court, petitioner Ginzburg asserted that at most the evidence shows the intent of petitioner Eros Magazine, Inc., and was erroneously used against him. The Court of Appeals held the point de minimis, 338 F.2d, at 16-17, on the ground that the parties had stipulated the necessary intent. The United States, in its brief in this Court, likewise viewed this evidence as relating solely to scienter; nowhere did the United States attempt to sustain these convictions on anything like a pandering theory.