Ginzburg v. United States, 383 U.S. 463; 86 S. Ct. 942; 16 L. Ed. 2d 31 (1966)
Facts—Ralph Ginzburg was convicted of violating the federal obscenity statute by producing and selling obscene publications. The government charged that Ginzburg’s advertising openly appealed to the erotic interest of potential customers. This case involved another application of what has come to be known as “the Roth test.” This attempt to define obscenity was first set forth in Roth v. United States, 354 U.S. 476 (1957) and has been elaborated in subsequent cases. Under this test three elements must coalesce to constitute obscenity: (1) the dominant theme of the material in question must appeal to a prurient interest in sex, (2) it must affront contemporary community standards, and (3) the material must be utterly without redeeming social value.
Question—Have the standards of “the Roth test” been correctly applied in this case?
Decision—Yes.
Reasons—J. Brennan (5–4). Evidence showed that pandering—the business of purveying textual or graphic matter openly advertised to appeal to the erotic interests of persons—was involved. “The fact that each of these publications was created or exploited entirely on the basis of its appeal to prurient interests strengthens the conclusion that the transactions here were sales of illicit mer- chandise, not sales of constitutionally protected matter.” The determination of the opinion is simply that questionable publications are obscene in a context— here the commercial exploitation of erotica solely for the sake of prurient appeal—which “brands them as obscene as the term is defined in Roth—a use inconsistent with any claim to the shelter of the First Amendment.”
J. Black, J. Douglas, J. Stewart, and J. Harlan all authored dissents questioning whether the Roth standard gave fair notice and/or questioning the relevancy of the fact that Ginzburg was engaged in “pandering” while selling his materials.
Note—Although the standard for obscenity was outlined in Roth and carefully altered in Miller, the justices treated Ginzburg differently and made their ruling on the basis of “pandering.” This concept was reaffirmed in Splawn v. California, 431 U.S. 595 (1977).