Supreme Court Obscenity


“Obscenity” is a bag of smoke used to conceal one’s dislikes with regards to aspects of sex.

The late Ralph Ginzburg, First Amendment warrior, in The New York Times, July 7, 2006

There are as many different definitions of obscenity as there are human beings, and they are as unique to the individual as his dreams.

Justice William O. Douglas, a dissenter in the 1966 Supreme Court decision that imprisoned publisher Ralph Ginzburg on federal charges of obscenity

During the reign of J. Edgar Hoover, FBI agents had knocked at my door because of my writings in the Voice about his wholesale violations of the First and Fourth amendments in his pursuit of “un-Americans.” But in the spring of 1962, the imperious knock was by a detective from the office of the Manhattan district attorney.

Packing—but not pointing—a gun, he was summoning me peremptorily downtown to be questioned about an article I had written in the first issue, just out, of Ralph Ginzburg’s hardcover magazine Eros, devoted to multidimensional views of sexuality in paintings, books, and history. I wrote the lead piece, “The Blues of Blacks and Whites,” showing that black blues “speak of sexual love with a spontaneous joy or a wracking sorrow that has been absent from our formal poetry” and in most white popular songs.

At the district attorney’s office, I was asked what I knew of this Ralph Ginzburg and his intentions as a publisher. Citing several Supreme Court First Amendment decisions, I said the questions were improper, and said nothing more. That was the last I heard from the office of the district attorney—this was before the much more libertarian Robert Morgenthau was fortunately elected to that office.

But when the fourth—and as it turned out, last—issue of Eros was published, Ralph Ginzburg was indicted for violating federal anti-obscenity laws by the order of Attorney General Robert Kennedy. (Yes, the Robert Kennedy, who, at the time, had minimal regard for civil liberties.)

When Ginzburg died, at 76, on July 7 of this year, all the obituaries featured his eventual five-to-four loss at the Supreme Court in 1966. And the New York Times obit ended with a quote from Ginzburg, who had been sentenced to five years in prison and a $40,000 fine (he was released after eight months). Said Ginzburg years later—after an active career, following prison, as a publisher and a super news photographer for the New York Post:

“I have always felt that I might have become a major force in American publishing had it not been for my conviction. Instead, I’m just a curious footnote.”

Ralph Ginzburg greatly underestimated his legacy. In his years after prison, he was much more than a “footnote” as a publisher and photographer. But what all the obituaries left out was— as I shall indicate—the impact of his conviction on the Supreme Court itself, which subsequently began to greatly diminish the high court’s concern with obscenity.

The justice who wrote the majority Ginzburg decision was, of all people, William Brennan, until then—and after—a vigorous protector of the First Amendment. Joining him in the wrongful majority were Chief Justice Earl Warren, Tom Clark, Byron White, and Abe Fortas (hardly the most shining moment in their judicial lives). The dissenters were William O. Douglas, Hugo Black, John Harlan, and Potter Stewart. The next morning, the Times editorial said, “[Ginzburg] was strictly an entrepreneur in a disreputable business. . . . Pornographic racketeers have cause to worry.”

Years later, through writing a profile of Justice Brennan for The New Yorker, I got to know him quite well. One day, in his chambers, I asked Brennan if he had any regrets at having sent Ginzburg to prison. The usually amiable Brennan was uncomfortable at the question and snapped, “You haven’t seen that decision quoted by any other judge, have you?”

But in 1973, in Paris Adult Theatre I v.
, Justice Brennan, in dissent, finally decided to admit that it was “hopeless confusion” to try to separate obscenity from other sexually oriented but constitutionally protected speech.

And after writing that 1973 decision, Brennan told me, “If you can’t define it, you can’t prosecute people for it.”

As for the Ginzburg case, I believe Brennan had come to realize, seven years later, what should have been clear to him at the time. Ralph’s conviction had been unconstitutional.

Robert Kennedy’s case against Eros and the two other Ginzburg publications, The Housewife’s Handbook on Selective Promiscuity and the newsletter Liaison, was not based on their content—rather on how he had advertised them through the mails. By emphasizing their “erotic” appeal, Ralph was charged with rousing the “prurient interests” of the ads’ readers. (He had been put behind bars for pandering.)

And Brennan, reading his Ginzburg decision from the bench in 1966, had actually written: “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’ “—even if the content of the publications, taken as a whole, had enough social or literary value to be protected by the First Amendment.

Since 1973, after Brennan threw up his hands and gave up trying to define obscenity, there have been hardly any significant obscenity cases before the Supreme Court. I am convinced that Brennan, even though it was a dissent, turned the court around, in part because of his embarrassment at what he had done to Ralph. As for why he did it, one of his clerks told me, “When Brennan read the Ginzburg decision from the bench, the back of his neck was turning red. You see, at the time, he had a teenage daughter.”

When Ralph lay dying, he told his wife, Shoshana, “I don’t want any memorial services. They’re for the living. People have to come, they want to, but it’s an imposition. My memorials will be in the obituaries in the press.” And when he was near the end, he said, “Shoshana, don’t waste any time when it’s over, immediately call the Associated Press.”

Ralph was wrong. He will be much more than an obituary footnote in the annals of the First Amendment, from which—as Justice Brennan told me long after sidetracking himself in Ralph’s case—”all our liberties flow.”

So long, Ralph, it was an honor to know you.