This case, like Ginzburg v. United States, ante, p. 463, also decided today, involves convictions under a criminal obscenity statute. A panel of three judges of the Court of Special Sessions of the City of New York found appellant guilty of violating § 1141 of the New York Penal Law
Appellant was not prosecuted for anything he said or believed, but for what he did, for his dominant role in several enterprises engaged in producing and selling
All the books are cheaply prepared paperbound "pulps" with imprinted sales prices that are several thousand percent above costs. All but three were printed by a photo-offset printer who was paid 40¢ or 15¢ per copy, depending on whether it was a "thick" or "thin" book. The printer was instructed by appellant not to use appellant's name as publisher but to print some fictitious
Appellant attacks § 1141 as invalid on its face, contending that it exceeds First Amendment limitations by proscribing publications that are merely sadistic or masochistic, that the terms "sadistic" and "masochistic" are impermissibly vague, and that the term "obscene" is also impermissibly vague. We need not decide the merits of the first two contentions, for the New York courts held in this case that the terms "sadistic" and "masochistic," as well as the other adjectives used in § 1141 to describe proscribed books, are "synonymous with `obscene.' " 26 Misc. 2d, at 154, 207 N. Y. S. 2d, at 393. The contention that the term "obscene" is also impermissibly vague fails under our holding in Roth v. United States, 354 U.S. 476, 491-492. Indeed, the definition of "obscene" adopted by the New York courts in interpreting § 1141 delimits a narrower class of conduct than that delimited under the Roth definition, People v. Richmond County News, Inc., 9 N.Y.2d 578, 586-587, 175 N.E.2d 681, 685-686 (1961),
Appellant also objects that § 1141 is invalid as applied, first, because the books he was convicted of publishing, hiring others to prepare, and possessing for sale are not obscene, and second, because the proof of scienter is inadequate.
1. The Nature of the Material.—The First Amendment prohibits criminal prosecution for the publication and dissemination of allegedly obscene books that do not satisfy the Roth definition of obscenity. States are free to adopt other definitions of obscenity only to the extent that those adopted stay within the bounds set by the constitutional criteria of the Roth definition, which
The New York courts have interpreted obscenity in § 1141 to cover only so-called "hard-core pornography," see People v. Richmond County News, Inc., 9 N.Y.2d 578, 586-587, 175 N.E.2d 681, 685-686 (1961), quoted in note 4, supra. Since that definition of obscenity is more stringent than the Roth definition, the judgment that the constitutional criteria are satisfied is implicit in the application of § 1141 below. Indeed, appellant's sole contention regarding the nature of the material is that some of the books involved in this prosecution,
Where the material is designed for and primarily disseminated to a clearly defined deviant sexual group, rather than the public at large, the prurient-appeal requirement of the Roth test is satisfied if the dominant theme of the material taken as a whole appeals to the prurient interest in sex of the members of that group. The reference to the "average" or "normal" person in Roth, 354 U. S., at 489-490, does not foreclose this holding.
No substantial claim is made that the books depicting sexually deviant practices are devoid of prurient appeal to sexually deviant groups. The evidence fully establishes that these books were specifically conceived and marketed for such groups. Appellant instructed his authors and artists to prepare the books expressly to induce their purchase by persons who would probably be sexually stimulated by them. It was for this reason that appellant "wanted an emphasis on beatings and fetishism and clothing—irregular clothing, and that sort of thing,
2. Scienter.—In People v. Finkelstein, 9 N.Y.2d 342, 344-345, 174 N.E.2d 470, 471 (1961), the New York Court of Appeals authoritatively interpreted § 1141 to require the "vital element of scienter," and it defined the required mental element in these terms:
Appellant's challenge to the validity of § 1141 founded on Smith v. California, 361 U.S. 147, is thus foreclosed,
Appellant's principal argument is that there was insufficient proof of scienter. This argument is without merit. The evidence of scienter in this record consists, in part, of appellant's instructions to his artists and writers; his efforts to disguise his role in the enterprise that published and sold the books; the transparency of the character of the material in question, highlighted by the titles, covers, and illustrations; the massive number of obscene books appellant published, hired others to prepare, and possessed for sale; the repetitive quality of the sequences and formats of the books; and the exorbitant
Appellant claims that all but one of the books were improperly admitted in evidence because they were fruits of illegal searches and seizures. This claim is not capable in itself of being brought here by appeal, but only by a petition for a writ of certiorari under 28 U. S. C. § 1257 (3) (1964 ed.) as specifically setting up a federal constitutional right.
The far-reaching and important questions tendered by this claim are not presented by the record with sufficient
In light of these circumstances, which were not fully apprehended at the time we took the case, we decline to reach the merits of the search and seizure claim; insofar as notation of probable jurisdiction may be regarded as a grant of the certiorari writ on the search and seizure issue, that writ is dismissed as improvidently granted. "Examination of a case on the merits . . . may bring into `proper focus' a consideration which . . .
[For dissenting opinion of MR. JUSTICE DOUGLAS, see ante, p. 482.]
APPENDIX TO OPINION OF THE COURT.
THE CONVICTIONS BEING REVIEWED.
§ 1141 Counts Naming the Book Exhibit Publishing Hiring No. Title of Book Possession Others 1 Chances Go Around 1 63 111 2 Impact 2 64 112 3 Female Sultan 3 65 113 4 Satin Satellite 4 5 Her Highness 5 67 115 6 Mistress of Leather 6 68 116 7 Educating Edna 7 69 117 8 Strange Passions 8 70 118 9 The Whipping Chorus Girls 9 71 119 10 Order Of The Day and Bound Maritally 10 72 120 11 Dance With the Dominant Whip 11 73 121 12 Cult Of The Spankers 12 74 122 13 Confessions 13 75 123 14 & 46 The Hours Of Torture 14 & 40 76 124 15 & 47 Bound In Rubber 15 & 41 77 125 16 & 48 Arduous Figure Training at Bondhaven 16 & 42 78 126 17 & 49 Return Visit To Fetterland 17 & 43 79 127 18 Fearful Ordeal In Restraintland 18 80 128 19 & 50 Women In Distress 19 & 44 81 129 20 & 54 Pleasure Parade No. 1 20 & 48 82 130 21 & 57 Screaming Flesh 21 & 51 86 134 22 & 58 Fury 22 & 52 23 So Firm So Fully Packed 23 87 135 24 I'll Try Anything Twice 24 25 & 59 Masque 25 & 53 26 Catanis 26
§ 1141 Counts Naming the Book Exhibit Publishing Hiring No. Title of Book Possession Others 27 The Violated Wrestler 27 89 137 28 Betrayal 28 29 Swish Bottom 29 90 138 30 Raw Dames 30 91 139 31 The Strap Returns 31 92 140 32 Dangerous Years 32 93 141 43 Columns of Agony 37 95 144 44 The Tainted Pleasure 38 96 145 45 Intense Desire 39 97 146 51 Pleasure Parade No. 4 45 85 133 52 Pleasure Parade No. 3 46 84 132 53 Pleasure Parade No. 2 47 83 131 55 Sorority Girls Stringent Initiation 49 98 147 56 Terror At The Bizarre Museum 50 99 148 60 Temptation 57 61 Peggy's Distress On Planet Venus 58 101 150 62 Ways of Discipline 59 102 151 63 Mrs. Tyrant's Finishing School 60 103 152 64 Perilous Assignment 61 104 153 68 Bondage Correspondence 107 156 69 Woman Impelled 106 155 70 Eye Witness 108 157 71 Stud Broad 109 158 72 Queen Bee 110 159
MR. JUSTICE HARLAN, concurring.
On the issue of obscenity I concur in the judgment of affirmance on premises stated in my dissenting opinion in A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Massachusetts, ante, p. 455. In all other respects I agree with and join the Court's opinion.
MR. JUSTICE BLACK, dissenting.
The Court here affirms convictions and prison sentences aggregating three years plus fines totaling $12,000 imposed
I would reverse these convictions. The three-year-sentence imposed on Mishkin and the five-year sentence imposed on Ginzburg for expressing views about sex are minor in comparison with those more lengthy sentences that are inexorably bound to follow in state and federal courts as pressures and prejudices increase and grow more powerful, which of course they will. Nor is it a sufficient answer to these assuredly ever-increasing punishments to rely on this Court's power to strike down "cruel and unusual punishments" under the Eighth Amendment. Distorting or stretching that Amendment by reading it as granting unreviewable power to this Court to perform the legislative function of fixing punishments for all state and national offenses offers a sadly inadequate solution to the multitudinous problems generated by what I consider to be the un-American policy of censoring the thoughts and opinions of people. The only practical answer to these concededly almost unanswerable problems is, I think, for this Court to decline to act as a national board of censors over speech and press but instead to stick to its clearly authorized constitutional duty to adjudicate cases over things and conduct. Halfway censorship methods, no matter how laudably motivated, cannot in my judgment protect our cherished First Amendment freedoms from the destructive aggressions of both state and national government. I would reverse this case and announce that the First and Fourteenth Amendments taken together command that neither Congress
MR. JUSTICE STEWART, dissenting.
The appellant was sentenced to three years in prison for publishing numerous books. However tawdry those books may be, they are not hard-core pornography, and their publication is, therefore, protected by the First and Fourteenth Amendments. Ginzburg v. United States, ante, p. 497 (dissenting opinion). The judgment should be reversed.
"1. A person who . . . has in his possession with intent to sell, lend, distribute . . . any obscene, lewd, lascivious, filthy, indecent, sadistic, masochistic or disgusting book . . . or who . . . prints, utters, publishes, or in any manner manufactures, or prepares any such book . . . or who
"2. In any manner, hires, employs, uses or permits any person to do or assist in doing any act or thing mentioned in this section, or any of them,
"Is guilty of a misdemeanor . . . .
"4. The possession by any person of six or more identical or similar articles coming within the provisions of subdivision one of this section is presumptive evidence of a violation of this section.
"5. The publication for sale of any book, magazine or pamphlet designed, composed or illustrated as a whole to appeal to and commercially exploit prurient interest by combining covers, pictures, drawings, illustrations, caricatures, cartoons, words, stories and advertisements or any combination or combinations thereof devoted to the description, portrayal or deliberate suggestion of illicit sex, including adultery, prostitution, fornication, sexual crime and sexual perversion or to the exploitation of sex and nudity by the presentation of nude or partially nude female figures, posed, photographed or otherwise presented in a manner calculated to provoke or incite prurient interest, or any combination or combinations thereof, shall be a violation of this section."
Appellant was also convicted on 33 counts charging violations of § 330 of the General Business Law for failing to print the publisher's and printer's names and addresses on the books. The Appellate Division reversed the convictions under these counts, and the Court of Appeals affirmed. The State has not sought review of that decision in this Court.
See also People v. Fritch, 13 N.Y.2d 119, 123, 192 N.E.2d 713, 716 (1963):
"In addition to the foregoing tests imposed by the decisions of the [United States] Supreme Court, this court interpreted section 1141 of the Penal Law in People v. Richmond County News . . . as applicable only to material which may properly be termed `hard-core pornography.' "
It is true that some of the material in Alberts v. California, decided with Roth, resembled the deviant material involved here. But no issue involving the obscenity of the material was before us in either case. 354 U. S., at 481, n. 8. The basic question for decision there was whether the publication and sale of obscenity, however defined, could be criminally punished in light of First Amendment guarantees. Our discussion of definition was not intended to develop all the nuances of a definition required by the constitutional guarantees.
We do not read Judge Froessel's parenthetical reference to knowledge of the contents of the books in his opinion in People v. Finkelstein, 11 N.Y.2d 300, 304, 183 N.E.2d 661, 663 (1962), as a modification of this definition of scienter. Cf. People v. Fritch, 13 N.Y.2d 119, 126, 192 N.E.2d 713, 717-718 (1963).
No constitutional claim was asserted below or in this Court as to the possible duplicative character of the hiring and publishing counts.
The § 1141 counts did not allege appellant's knowledge of the character of the books, but appellant has not argued, below or here, that this omission renders the information constitutionally inadequate.
Although the New York Court of Appeals has purported to interpret § 1141 to cover only what it calls "hard-core pornography," this case makes abundantly clear that that phrase has by no means been limited in New York to the clearly identifiable and distinct class of material I have described in Ginzburg v. United States, ante, p. 497, at 499, note 3 (dissenting opinion).