Ginsberg v. New York
Does the First Amendment permit a state to enact a law that prohibits the sale of sexually explicit material to minors under 17, even when that same material is not legally obscene for adults?
The Decision
6-3 decision · Opinion by William J. Brennan Jr. · 1968
Majority Opinion— William J. Brennan Jr.concurring ↓dissent ↓
In a 6–3 decision authored by Justice William J. Brennan Jr., the Supreme Court upheld Sam Ginsberg's conviction and ruled that the New York statute was constitutional. The Court held that a state may adopt a definition of obscenity for minors that is broader than the definition that applies to adults, and that doing so does not violate the First or Fourteenth Amendments.
The majority's reasoning rested on two main pillars. First, the Court recognized that the state has a strong, independent interest in the well-being of children — an interest that exists alongside and supports the authority of parents to direct the upbringing of their children. The Court found that the New York legislature could reasonably conclude that parents were entitled to the support of the law in controlling what sexually explicit material their children could access. The statute was seen as reinforcing parental authority rather than undermining individual rights.
Second, the Court applied what amounted to a rational basis standard of review. It concluded that the legislature did not need to produce conclusive scientific proof that exposure to sexually explicit material actually harms minors. Instead, it was enough that the legislature could rationally have concluded such material was harmful. The Court noted that while scientific evidence on the subject was inconclusive, the legislature was not acting irrationally in deciding to err on the side of protecting children.
The majority also endorsed the concept of 'variable obscenity' — the idea that the legal definition of obscenity is not fixed but can vary depending on the audience. Material that passes constitutional muster when directed at adults can still be classified as obscene when directed at children. Importantly, the Court emphasized that the New York law did not restrict adults' access to the magazines in any way; it only prohibited their sale to minors. This narrow targeting was a significant factor in the Court's reasoning.
By upholding the statute, the Court established a framework that gave state legislatures substantial room to regulate minors' access to sexual material, as long as the restrictions were rationally related to the state's interest in child welfare and did not impermissibly burden the rights of adults.
Concurring Opinions
Justice Potter Stewart concurred in the result but on narrower grounds, indicating he believed the specific magazines sold by Ginsberg were in fact obscene even under the adult standard and therefore could be restricted regardless of the buyer's age. Justice John Marshall Harlan II also wrote a brief concurring opinion, emphasizing his view that states should be afforded broad latitude in regulating obscenity under the Fourteenth Amendment.
Dissenting Opinions
William O. Douglasjoined by Hugo Black
Justice Douglas argued that the First Amendment is an absolute bar to government censorship of expression, and that the state cannot suppress speech — even for minors — simply because it finds the content objectionable or potentially harmful. He saw the majority's decision as an impermissible step toward broader government control over what people may read.
- The First Amendment does not permit the government to act as a censor deciding which ideas or images are suitable for particular audiences
- Allowing the state to define a separate, broader category of banned speech for children opens the door to ever-expanding restrictions on free expression
- There was no adequate proof that the magazines in question caused any actual harm to minors, making the restriction an exercise in speculative paternalism
Abe Fortas
Justice Fortas dissented on narrower grounds, arguing that while states might have some power to restrict truly harmful material from reaching children, the specific magazines at issue in this case had not been shown to be the type of material that warranted criminal punishment. He believed the state must demonstrate a more direct connection between the material and harm to minors.
- The state should be required to show that the specific material in question poses a real and demonstrable danger to minors, not merely that it depicts nudity
- Criminal prosecution for selling magazines that are constitutionally protected for adults demands a more rigorous showing of harm than the majority required
- The breadth of the statute risked criminalizing the sale of material that has legitimate artistic, educational, or informational value for young people
Background & Facts
Sam Ginsberg and his wife operated a small luncheonette and stationery store called Sam's Stationery and Luncheonette in Bellmore, a hamlet on Long Island, New York. Among the items for sale were various magazines, including publications sometimes referred to as 'girlie magazines' — periodicals featuring photographs of nude or partially nude women. In October 1965, a 16-year-old boy entered the store and purchased two such magazines directly from Ginsberg. The boy's mother had actually sent him to the store to make the purchase, apparently to test whether the store would sell such material to a minor.
Ginsberg was charged under Section 484-h of the New York Penal Law, a statute that made it a crime to knowingly sell to anyone under 17 years old any material that depicted nudity and was 'harmful to minors,' even if that same material would not be considered legally obscene if sold to an adult. The statute essentially created a two-tiered system: material that adults could freely buy and read could still be criminally restricted when sold to children. The law defined 'harmful to minors' using a modified version of the existing legal test for obscenity, but calibrated specifically for a younger audience.
Ginsberg was tried and convicted in the Nassau County District Court. He appealed his conviction, arguing that the New York statute violated the First and Fourteenth Amendments because it effectively banned the sale of constitutionally protected material — after all, the magazines were legal for adults to purchase. His conviction was upheld by the intermediate appellate courts and by the New York Court of Appeals, the state's highest court.
The U.S. Supreme Court agreed to hear the case because it raised an important constitutional question at the intersection of free speech and the government's authority to protect children. Specifically, the case tested whether a state could constitutionally define obscenity more broadly when the audience was children, a concept legal scholars had begun calling 'variable obscenity.' This was a novel and significant First Amendment question that the Court had not yet squarely addressed.
The Arguments
Ginsberg argued that because the magazines he sold were not legally obscene for adults, they were protected speech under the First Amendment. A state cannot criminalize the sale of constitutionally protected material simply because the buyer happens to be a minor.
- The magazines were lawful for adults to purchase and possess, meaning they were constitutionally protected expression under existing obscenity standards
- The New York statute effectively created a new, broader category of banned speech without meeting the constitutional requirements for restricting expression
- The government cannot use the concept of 'variable obscenity' to strip First Amendment protection from material based solely on the age of the recipient
New York argued that the state has a compelling and well-recognized interest in protecting the welfare of children, and that this interest justifies drawing a line between what may be sold to adults and what may be sold to minors, even when the material is not obscene for adults.
- The state has broad authority, rooted in both parental rights and its own independent interest in child welfare, to shield minors from material the legislature rationally deems harmful
- The concept of variable obscenity is constitutionally sound — what is appropriate for adults is not necessarily appropriate for children, and the law can reflect that difference
- The statute did not ban any material outright; adults could still freely purchase and read the same magazines, so the law imposed no burden on adult access to protected speech