Ginzburg vs. United States  

From The Art and Popular Culture Encyclopedia

Jump to: navigation, search

Related e

Google
Wikipedia
Wiktionary
Wiki Commons
Wikisource
YouTube
Shop


Featured:
Train wreck at Montparnasse (October 22, 1895) by Studio Lévy and Sons.
Enlarge
Train wreck at Montparnasse (October 22, 1895) by Studio Lévy and Sons.

Ginzburg vs. United States was an American court case against Ralph Ginzburg. After a brief trial in June, 1963, Ginzburg was convicted in Philadelphia by the U.S. District Court for the Eastern District of Pennsylvania. The U.S. Court of Appeals for the Third Circuit affirmed the conviction in 1964, and two years later the U.S. Supreme Court announced its decision, also affirming the conviction, in Ginzburg v. United States, 383 U.S. 463 (March 21 1966). The same day, the Court announced its decision in Memoirs v. Massachusetts (commonly known as the "Fanny Hill case" after the informal title of the John Cleland novel at the heart of the judgment). This case declared that the First Amendment would not allow a work to be banned unless it was "utterly without redeeming social value"—a legal proviso that troubled some commentators, who felt that Ginzburg had been convicted for three works they deemed more "socially valuable" than Cleland's antique work of unvarnished erotica.

Background

Egged on by a smut-hunting Catholic priest, Morton Hill, U.S. Attorney General Robert Kennedy had Ralph Ginzburg indicted for distributing obscene literature through the mails, in violation of federal anti-obscenity laws. The indictment, although full of counts, really comprised three allegations of obscenity: First, publication of Volume I, No. 1, of EROS; second, publication of his newsletter Liaison; and third, that although The Housewife's Handbook on Selective Promiscuity, published by Ginzburg, was not itself obscene because of its inherent artistic value, Ginzburg has mailed advertisements for the book which accentuated the erotic content of the book in such as way as to appeal to "prurient interests". The advertising emphasized their sexual imagery, and included a guarantee of a full refund "if the book fails to reach you because of U.S. Post Office censorship interference."

The following were the portions of the advertisements that the district court found to "pander to prurient interests":

  • "Eros is a child of its times. . . . [It] is the result of recent court decisions that have realistically interpreted America's obscenity laws and that have given to this country a new breadth of freedom of expression. . . . EROS takes full advantage of this new freedom of expression. It is the magazine of sexual candor."
  • "EROS is a new quarterly devoted to the subjects of Love and Sex. In the few short weeks since its birth, EROS has established itself as the rave of the American intellectual community - and the rage of prudes everywhere! And it's no wonder: EROS handles the subjects of Love and Sex with complete candor. The publication of this magazine - which is frankly and avowedly concerned with erotica - has been enabled by recent court decisions ruling that a literary piece or painting, though explicitly sexual in content, has a right to be published if it is a genuine work of art. EROS is a genuine work of art. . . ."
  • The outer envelopes of the Liaison flyers asked, "Are you among the chosen few?"
  • The first line of the Liaison advertisement: "Are you a member of the sexual elite?" . . . "That is, are you among the few happy and enlightened individuals who believe that a man and woman can make love without feeling pangs of conscience? Can you read about love and sex and discuss them without blushing and stammering? If so, you ought to know about an important new periodical called Liaison. . . ."
  • "In short, Liaison is Cupid's Chronicle. . . . Though Liaison handles the subjects of love and sex with complete candor, I wish to make it clear that it is not a scandal sheet and it is not written for the man in the street. Liaison is aimed at intelligent, educated adults who can accept love and sex as part of life. . . I'll venture to say that after you've read your first bi-weekly issue, Liaison will be your most eagerly awaited piece of mail."
  • The defendants sought mailing privileges from the postmasters of Intercourse and Blue Ball, Pennsylvania, before settling upon Middlesex, New Jersey, as a mailing point.
  • Inserted in each book advertisement was a slip labeled "GUARANTEE" and reading, "Documentary Books, Inc. unconditionally guarantees full refund of the price of THE HOUSEWIFE'S HANDBOOK ON SELECTIVE PROMISCUITY if the book fails to reach you because of U.S. Post Office censorship interference."

It was this last act which was most important to the legal community, because it established new law: although neither the book nor the advertising mailer were themselves obscene, the advertisement attempted to sell the book by characterising it as obscene, which violated the federal law (and was permissible under the First Amendment). Writing for a 5-4 majority, Justice Brennan held that in a close case, evidence that a defendant deliberately represented the materials in question as appealing to customers' erotic interest could support a finding that the materials are obscene. He wrote: "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 publications examined out of context might not be deemed obscene. Ginzburg was sentenced to five years in prison but ultimately served only eight months.

The case was clearly a troubling one for the Supreme Court. Even the prosecutors feared that all three publications had enough intrinsic artistic and social value to pass the Roth test, which was at that time the standard by which the Court decided criminal obscenity cases.

After a brief trial in June, 1963, Ginzburg was convicted in Philadelphia by the U.S. District Court for the Eastern District of Pennsylvania. The U.S. Court of Appeals for the Third Circuit affirmed the conviction in 1964, and two years later the U.S. Supreme Court announced its decision, also affirming the conviction, in Ginzburg v. United States, 383 U.S. 463 (March 21 1966). The same day, the Court announced its decision in Memoirs v. Massachusetts (commonly known as the "Fanny Hill case" after the informal title of the John Cleland novel at the heart of the judgment). This case declared that the First Amendment would not allow a work to be banned unless it was "utterly without redeeming social value"—a legal proviso that troubled some commentators, who felt that Ginzburg had been convicted for three works they deemed more "socially valuable" than Cleland's antique work of unvarnished erotica.

Immediately after the Supreme Court decision was announced, the public and mainstream press were heavily supportive of the decision. One person who had no problem supporting Ginzburg was Allen Ginsberg, who traveled to Washington and picketed the Supreme Court building.




Unless indicated otherwise, the text in this article is either based on Wikipedia article "Ginzburg vs. United States" or another language Wikipedia page thereof used under the terms of the GNU Free Documentation License; or on original research by Jahsonic and friends. See Art and Popular Culture's copyright notice.

Personal tools