Ginzburg v. United States
16 L. Ed. 2d 31, 1966 U.S. LEXIS 2013, 383 U.S. 463 (1966)
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Rule of Law:
In an obscenity prosecution, evidence of pandering—the purveyor's commercial exploitation of erotica designed to appeal to the customers' prurient interest—is relevant in determining whether the material in question is obscene. Such evidence may be decisive in close cases where the material, in the abstract, might not be considered obscene.
Facts:
- Ralph Ginzburg created and sold three publications: EROS, a hard-cover magazine; Liaison, a bi-weekly newsletter; and 'The Housewife’s Handbook on Selective Promiscuity.'
- Ginzburg's company initially sought mailing privileges from the post offices in Intercourse, Pennsylvania, and Blue Ball, Pennsylvania.
- After being denied privileges in those towns, Ginzburg obtained mailing privileges from Middlesex, New Jersey.
- Ginzburg's companies mailed millions of circulars advertising the publications, stressing their sexual candor and boasting that they took full advantage of new legal freedoms in expressing sexual matters.
- The solicitations were sent indiscriminately to the general public.
- Advertisements for the publications included a slip labeled 'GUARANTEE,' which promised a full refund if the U.S. Post Office interfered with delivery due to censorship.
Procedural Posture:
- Ralph Ginzburg and three of his corporations were indicted in the U.S. District Court for the Eastern District of Pennsylvania on 28 counts of violating the federal obscenity statute.
- Following a trial without a jury, the district court judge found the defendants guilty on all counts.
- Ginzburg (appellant) appealed the conviction to the U.S. Court of Appeals for the Third Circuit.
- The Court of Appeals affirmed the convictions.
- The U.S. Supreme Court granted certiorari to review the decision of the Court of Appeals.
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Issue:
Does evidence that a defendant deliberately marketed and advertised publications to appeal to the erotic interests of customers (pandering) permit a finding that the publications are obscene under the federal obscenity statute, even if they might not be considered obscene in other contexts?
Opinions:
Majority - Mr. Justice Brennan
Yes. 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. The Court reasoned that the question of obscenity is not limited to the content of the material in the abstract but can and should include the context of its production, sale, and publicity. The evidence showed Ginzburg was engaged in the 'sordid business of pandering,' as demonstrated by his attempts to mail from towns with sexually suggestive names and his advertising that highlighted prurient appeal over any claimed social value. This deliberate representation of the publications as erotically arousing 'brands them as obscene' under the Roth test, resolving any ambiguity about their nature. Therefore, the commercial exploitation of materials for their prurient appeal is probative evidence that can support a determination of obscenity.
Dissenting - Mr. Justice Black
No. The conviction should be reversed because the First Amendment forbids any government censorship of speech and expression. The Court's obscenity standards are unconstitutionally vague, leaving a person's fate to the whim of a judge or jury. Furthermore, the Court violated due process by affirming Ginzburg's conviction based on a 'pandering' theory, which is essentially a new, judicially-created statute that Ginzburg was never charged with violating.
Dissenting - Mr. Justice Douglas
No. A publication's constitutional protection should be based on its content alone, not the methods used to sell it. Using sex in advertising is a common technique and does not change the nature of the product. The publications in question had redeeming social importance, as testified by several experts, and therefore could not be 'utterly without' value. The First Amendment protects all ideas, including those that are offbeat, repulsive, or cater to minority tastes, and the government has no business acting as a censor.
Dissenting - Mr. Justice Harlan
No. The federal obscenity statute is constitutionally limited to banning only 'hard-core pornography,' which the materials here are not. The majority has improvised a new 'panderer' test that is entirely unrelated to the statute's language, history, or purpose. This new theory is a different basis for conviction than the one used at trial. This violates Ginzburg's due process rights, as he is entitled to a day in court to defend against the specific theory on which his guilt ultimately depends.
Dissenting - Mr. Justice Stewart
No. The conviction should be reversed because the publications are not 'hard-core pornography,' the only type of material that government may constitutionally suppress. Affirming Ginzburg's conviction on the grounds of 'pandering' or 'commercial exploitation' denies him due process of law because he was not charged with those offenses. These new terms are unconstitutionally vague, and the Court has no power to deny First Amendment protection to someone simply because it disapproves of their 'sordid business.' The Constitution protects all speakers and publishers with an even hand.
Analysis:
This case significantly altered obscenity jurisprudence by introducing the 'pandering' doctrine. It shifted the focus from a purely content-based analysis of the material itself to a context-based analysis that includes the defendant's conduct in marketing and selling the material. This decision gave prosecutors a powerful tool, allowing them to use a publisher's own advertisements as evidence that the material was intended to appeal to prurient interest, thereby 'branding' otherwise borderline material as obscene. The case created a chilling effect for publishers of sexually frank material, forcing them to consider how their marketing strategies could be used against them in a criminal prosecution.
