# Ginsberg v. New York
## Concurring Opinion

    Stewart

## Dissenting Opinion

    Douglas
United States Supreme Court
390 U.S. 629
Ginsberg v. New York
Appeal from the Appellate Term of the Supreme Court of New York, Second Judicial Department
No. 47. Argued: January 16, 1968. --- Decided: April 22, 1968
Appellant, who operates a stationary store and luncheonette, was convicted of selling "girlie" magazines to a 16-year-old boy in violation of § 484-h of the New York Penal Law. The statute makes it unlawful "knowingly to sell... to a minor" under 17 "(a) any picture... which depicts nudity... and which is harmful to minors," and "(b) any... magazine... which contains [such pictures] and which, taken as a whole, is harmful to minors." Appellant's conviction was affirmed by the Appellate Term of the Supreme Court. He was denied leave to appeal to the New York Court of Appeals.
Held:
    1. The magazines here involved are not obscene for adults and appellant is not barred from selling them to persons 17 years of age or older. Pp. 634-635.
    2. Obscenity is not within the area of protected speech or press, Roth v. United States, 354 U.S. 476, 485, and there is no issue here of the obscenity of the material involved as appellant does not argue that the magazines are not "harmful to minors." P. 635.
    3. It is not constitutionally impermissible for New York, under this statute, to accord minors under 17 years of age a more restricted right than that assured to adults to judge and determine for themselves what sex material they may read and see. Pp. 637-643.
       (a) The State has power to adjust the definition of obscenity as applied to minors, for even where there is an invasion of protected freedoms "the power of the state to control the conduct of children reaches beyond the scope of its authority over adults." Prince v. Massachusetts, 321 U.S. 158, 170. Pp. 638-639.
       (b) Constitutional interpretation has consistently recognized that the parents' claim to authority in the rearing of their children is basic in our society, and the legislature could properly conclude that those primarily responsible for children's well-being are entitled to the support of laws designed to aid discharge of that responsibility. P. 639.
       (c) The State has an independent interest in protecting the welfare of children and safeguarding them from abuses. Pp. 640-641.
       (d) This Court cannot say that the statute, in defining obscenity on the basis of its appeal to minors under 17, has no rational relation to the objective of safeguarding such minors from harm. Pp. 641-643.
    4. Subsections (f) and (g) of § 484-h are not void for vagueness. Pp. 643-645.
       (a) The New York Court of Appeals, in Bookcase, Inc. v. Broderick, 18 N.Y. 2d 71, 76, 218 N.E. 2d 668, 671, construed the definition of obscenity "harmful to minors" in subsection (f) "as virtually identical to" this Court's most recent statement of the elements of obscenity in Memoirs v. Massachusetts, 383 U.S. 413, 418, and accordingly the definition gives adequate notice of what is prohibited and does not offend due process requirements.
       (b) Since the New York Legislature's attention was drawn to People v. Finkelstein, 9 N.Y. 2d 342, 174 N.E. 2d 470, which defined the nature of scienter for New York's general obscenity statute, when it considered § 484-h, it may be inferred that the reference in provision (i) of subsection (g) to knowledge of the "character and content" of the material incorporates the gloss given the term "character" in People v. Finkelstein. P. 644.
       (c) Provision (ii) of subsection (g) states expressly that a defendant must be acquitted on the ground of "honest mistake" if he proves that he made "a reasonable bona fide attempt to ascertain the true age of such minor." P. 645.
Affirmed.
Emanuel Redfield argued the cause for appellant. With him on the brief was Benjamin E. Winston.
William Cahn argued the cause for appellee. With him on the brief was George Danzig Levine.
Briefs of amici curiae, urging reversal, were filed by Osmond K. Fraenkel, Edward J. Ennis, Melvin L. Wulf and Alan H. Levine for the American Civil Liberties Union et al., by Morris B. Abram and Jay Greenfield for the Council for Periodical Distributors Associations, Inc., by Horace S. Manges and Marshall C. Berger for the American Book Publishers Council, Inc., and by Irwin Karp for the Authors League of America, Inc.
Brief of amicus curiae, urging affirmance, was filed by Charles H. Keating, Jr., and James J. Clancy for the Citizens for Decent Literature, Inc.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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