Arizona State Law Review 29 (Summer 1997). Reprinted in T. Campbell (ed.), International Library of Essays in Law and Legal Theory, 2nd Series (Dartmouth Publishing Co. and Ashgate Publishing Ltd., 2003).
On two occasions in October of 1965, Sam Ginsberg, proprietor of Sam’s Stationery and Luncheonette in Bellmore, New York, sold magazines containing photographs of nude women to a sixteen-year-old boy. Ginsberg was tried in state court and convicted of violating Section 484-h of the New York Penal Law, which prohibited the sale of pornographic materials to minors (defined by the statute as persons under seventeen years of age). His conviction was upheld by the relevant department of the Appellate Term of the New York Supreme Court, after which he was denied leave to appeal to the New York Court of Appeals. The Supreme Court of the United States heard the case on appeal and in April of 1968 affirmed Ginsberg’s conviction in an opinion by Justice William Brennan. 1 Justice John Marshall Harlan concurred in the judgment and joined the opinion of the Court. Justice Potter Stewart concurred in the result. Justice William O. Douglas, joined by Justice Hugo Black, dissented. Justice Abe Fortas also dissented.
Ginsberg argued that the New York law violated the First Amendment’s guarantee of freedom of expression. He did not challenge the authority of the state to ban obscene publications. (The Supreme Court has always held that obscenity-like defamation and certain other types of harmful and valueless expression-is outside the First Amendment’s protections of freedom of speech and the press.) Rather, he claimed that the New York law was unconstitutional on its face because it banned the sale (to minors) of non-obscene publications.