Mishkin v. New York
1966 U.S. LEXIS 2014, 16 L. Ed. 2d 56, 383 U.S. 502 (1966)
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Rule of Law:
When material is designed for and primarily disseminated to a clearly defined deviant sexual group, the prurient-appeal requirement of the obscenity 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, rather than the average person.
Facts:
- Edward Mishkin operated several enterprises that produced and sold paperback books.
- Mishkin hired authors and artists, giving them detailed instructions to create books filled with graphic and deviant sexual content, including sado-masochism, fetishism, and lesbianism.
- He specifically instructed authors that the sex scenes had to be 'very strong,' 'rough,' and 'unusual,' providing them with source materials like Krafft-Ebing's 'Psychopathia Sexualis'.
- Many of the book covers depicted women being whipped, beaten, or tortured.
- The books were cheaply produced paperbound 'pulps' with imprinted sales prices thousands of percent above their production cost.
- To conceal his involvement, Mishkin instructed his printer to use fictitious publisher names on the books and paid his authors, artists, and printer in cash.
Procedural Posture:
- Edward Mishkin was charged in a New York trial court with violating a state obscenity statute.
- A three-judge panel of the Court of Special Sessions of the City of New York (the trial court) found Mishkin guilty.
- Mishkin appealed to the Appellate Division, First Department, an intermediate appellate court.
- The Appellate Division affirmed the convictions.
- Mishkin then appealed to the New York Court of Appeals, the state's highest court, which affirmed the decision without a written opinion.
- The U.S. Supreme Court noted probable jurisdiction to hear Mishkin's appeal.
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Issue:
Does the First Amendment's 'prurient interest' standard for obscenity permit judging material based on its appeal to the prurient interest of a clearly defined deviant sexual group to which it is primarily disseminated, rather than to the 'average person'?
Opinions:
Majority - Justice Brennan
Yes. The prurient-appeal requirement of the obscenity test is satisfied if the material's dominant theme, taken as a whole, appeals to the prurient interest of its intended recipient group, even if that group is a clearly defined deviant sexual group. The 'average person' standard from Roth v. United States was intended to reject the prior Hicklin test's focus on the 'most susceptible person,' not to create a rigid standard that ignores the reality of materials targeted at specific audiences. To assess such material by its appeal to the average person, who might be disgusted rather than aroused, would be unrealistic and would immunize the material from regulation. The evidence overwhelmingly showed Mishkin conceived of, produced, and marketed these books for such deviant groups. Furthermore, the New York statute's scienter requirement—that the defendant be aware of the character of the material—was satisfied by Mishkin's detailed instructions to his authors and his efforts to conceal his role in the enterprise.
Dissenting - Justice Black
No. The conviction should be reversed because the First and Fourteenth Amendments forbid the government from acting as a censor of speech or press, regardless of the subject matter. This Court is without constitutional power to decide what books or pictures people are permitted to see and read. The judiciary's constitutional duty is to adjudicate cases involving conduct, not to create rules about which ideas or discussions are permissible. The First Amendment commands that Congress and the States shall pass 'no law' abridging freedom of speech and press.
Dissenting - Justice Stewart
No. The conviction should be reversed because the books in question, however tawdry, are not 'hard-core pornography' and are therefore protected by the First and Fourteenth Amendments. The only material that can be constitutionally suppressed as obscene is the distinct and identifiable class of hard-core pornography. While the New York courts claim to have interpreted their statute to cover only 'hard-core pornography,' this case demonstrates that they have applied the term far more broadly than is constitutionally permissible.
Concurring - Justice Harlan
Yes. The judgment of affirmance should be upheld on the obscenity issue based on the reasoning provided in his dissenting opinion in a companion case, A Book Named 'John Cleland's Memoirs of a Woman of Pleasure' v. Attorney General of Massachusetts. He joined the majority's opinion in all other respects.
Analysis:
This decision significantly refined the obscenity standard established in Roth v. United States by introducing the concept of 'variable obscenity.' The Court clarified that the 'average person' standard is not a universal requirement; instead, the prurient-appeal element can be adapted to the specific audience the material targets. This holding makes it easier for the government to prosecute producers of materials aimed at niche or deviant markets, as prosecutors no longer have to prove the material would appeal to the prurient interest of the general public. The case solidified the principle that the context of distribution and the intended audience are relevant factors in an obscenity determination.
