# Ginsberg v. New York > Supreme Court of the United States · June 3, 1968 · 390 U.S. 629 URL: https://www.frixlaw.com/law-library/cases/9423669 ## Case - **Full name:** Ginsberg v. New York - **Court:** Supreme Court of the United States - **Decided:** June 3, 1968 - **Citations:** 390 U.S. 629; 88 S. Ct. 1274; 20 L. Ed. 2d 195; 1968 U.S. LEXIS 1880 - **Precedential status:** Published - **Opinion:** Dissent by Fortas - **Judges:** Brennan, Stewart, Douglas, Fortas, Harlan, Black - **Cited by:** 978 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9423669 ## How later opinions describe it (automated extraction) - concluding that the state’s compelling interest in protecting minors supported a state statute prohibiting the sale of "girlie” picture magazines to minors under seventeen, even though the magazines at issue were not obscene for adults - stating that “constitutional interpretation has consistently recognized that the parents’ claim to authority in their own household to direct the rearing of their children is basic in the structure of our society” - finding restriction on First Amendment rights of minors to be justified, “at least if it was rational for the legislature to find that the minors’ exposure to such material might be harmful ” (emphasis added) - stating “constitutional interpretation has consistently recognized that the parents’ claim to authority in their own household to direct the rearing of their children is basic in the structure of our society” - holding that it is constitutionally permissible “to accord minors under 17 a more restricted right than that assured to adults to judge and determine for themselves what sex material they may read or see” ## Opinion text Mr. Justice Fortas, dissenting. This is a criminal prosecution. Sam Ginsberg and his wife operate a luncheonette at which magazines are offered for sale. A 16-year-old boy was enlisted by his mother to go to the luncheonette and buy some *672 “girlie” magazines so that Ginsberg could be prosecuted. He went there, picked two magazines from a display case, paid for them, and walked out. Ginsberg’s offense was duly reported to the authorities. The power of the State of New York was invoked. Ginsberg was prosecuted and convicted. The court imposed only a suspended sentence. But as the majority here points out, under New York law this conviction may mean that Ginsberg will lose the license necessary to operate his luncheonette. The two magazines that the 16-year-old boy selected' are vulgar “girlie” periodicals. However tasteless and tawdry they may be, we have ruled (as the Court acknowledges) that magazines indistinguishable from them in content and offensiveness are not “obscene” within the constitutional standards heretofore applied. See, e. g., Gent v. Arkansas, 386 U. S. 767 (1967). These rulings have been in cases involving adults. The Court avoids facing the problem whether the magazines in the present case are “obscene” when viewed by a 16-year-old boy, although not “obscene” when viewed by sbmeone 17 years of age or older. It says that Ginsberg’s lawyer did not choose to challenge the conviction on the ground that the magazines are not “obscene.” He chose only to attack the statute on its face. Therefore, the Court reasons, we need not look at the magazines and determine whether they may be excluded from the ambit of the First Amendment as “obscene” for purposes of this case. But this Court has made strong and comprehensive statements about its duty in First Amendment cases- — statements with which I agree. See, e. g., Jacobellis v. Ohio, 378 U. S. 184, 187-190 (1964) (opinion of Brennan, J.). * *673 In my judgment, the Court cannot properly avoid its fundamental duty to define “obscenity” for purposes of censorship of material sold to youths, merely because of counsel’s position. By so doing the Court avoids the essence of the problem; for if the State’s power to censor freed from the prohibitions of the First Amendment depends upon obscenity, and if obscenity turns on the specific content of the publication, how can we sustain the conviction here without deciding whether the particular magazines in question are obscene? The Court certainly cannot mean that the States and cities and counties and villages have unlimited power to withhold anything and everything that is written or pictorial from younger people. But it here justifies the conviction of Sam Ginsberg because the impact of the Constitution, it says, is variable, and what is not obscene for an adult may be obscene for a child. This it calls “variable obscenity.” I do not disagree with this, but I insist that to assess the principle — certainly to apply it — the Court must define it. We must know the extent to which literature or pictures may be less offensive than Roth requires in order to be “obscene” for purposes of a statute confined to youth. See Roth v. United States, 354 U. S. 476 (1957). I agree that the State in the exercise of its police power — even in the First Amendment domain — may make proper and careful differentiation between adults and children. But I do not agree that this power may be used on an arbitrary, free-wheeling basis. This is not a case where, on any standard enunciated by the Court, *674 the magazines are obscene, nor one where the seller is at fault. Petitioner is being prosecuted for the sale of magazines which he had a right under the decisions of this Court to offer for sale, and he is being prosecuted without proof of “fault” — without even a claim that he deliberately, calculatedly sought to induce children to buy “obscene” material. Bookselling should not be a hazardous profession. The conviction of Ginsberg on the present facts is a serious invasion of freedom. To sustain the conviction without inquiry as to whether the material is “obscene” and without any evidence of pushing or pandering, in face of this Court's asserted solicitude for First Amendment values, is to give the State a role in the rearing of children which is contrary to our traditions and to our conception of family responsibility. Cf. In re Gault, 387 U. S. 1 (1967). It begs the question to present this undefined, unlimited censorship as an aid to parents in the rearing of their children. This decision does not merely protect children from activities which all sensible parents would condemn. Rather, its undefined and unlimited approval of state censorship in this area denies to children free access to books and works of art to which many parents may wish their children to have uninhibited access. For denial of access to these magazines, without any standard or definition of their allegedly distinguishing characteristics, is also denial of access to great works of art and literature. If this statute were confined to the punishment of pushers or panderers of vulgar literature I would not be so concerned by the Court’s failure to circumscribe state power by defining its limits in terms of the meaning of “obscenity” in this" field. The State's police power may, within very broad limits, protect the parents and their children from public aggression of panderers and pushers. This is defensible on the theory that they can *675 not protect themselves from such assaults. But it does not follow that the State may convict a passive luncheonette operator of a crime because a 16-year-old boy maliciously and designedly picks up and pays for two girlie magazines which are presumably not obscene. I would therefore reverse the conviction on the basis of Redrup v. New York, 386 U. S. 767 (1967) and Ginzburg v. United States, 383 U. S. 463 (1966). “[W]e reaffirm the principle that, in ‘obscenity’ cases as in all others involving rights derived from the First Amendment guar *673 antees of free expression, this Court cannot avoid making an independent constitutional judgment on the facts of the case as to whether the material involved is constitutionally protected.” 378 U. S., at 190 . See Cox v. Louisiana, 379 U. S. 536, 545, n. 8 (1965). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9423669. Public record. Not legal advice.