mishkin new york argued december decided march appellant convicted violating new york penal law publishing hiring others prepare possessing intent sell obscene books held statute impermissibly vague roth pp books properly found obscene material designed primarily disseminated clearly defined deviant sexual group rather public large requirement roth test satisfied dominant theme material taken whole appeals prurient interest sex members group ample evidence appellant possessed requisite scienter pp unrestricted notation probable jurisdiction appeal may regarded grant writ certiorari appellant claim books illegally seized admission evidence therefore improper however writ dismissed improvidently granted lack sufficient clarity record justify resolution issue pp emanuel redfield argued cause filed brief appellant richard uviller argued cause appellee brief frank hogan alan leibowitz edward de grazia filed brief marshall cohen et amici curiae urging reversal briefs amici curiae urging affirmance filed leo larkin roger arnebergh max zall city new york et al charles keating james clancy citizens decent literature et al justice brennan delivered opinion case like ginzburg ante also decided today involves convictions criminal obscenity statute panel three judges special sessions city new york found appellant guilty violating new york penal law hiring others prepare obscene books publishing obscene books possessing obscene books intent sell misc sentenced prison terms aggregating three years ordered pay fines crimes appellate division first department affirmed convictions app div appeals affirmed without opinion remittitur amended noted probable jurisdiction affirm appellant prosecuted anything said believed dominant role several enterprises engaged producing selling allegedly obscene books fifty books involved case portray sexuality many guises depict relatively normal heterosexual relations depict deviations fetishism homosexuality many covers drawings scantily clad women whipped beaten tortured abused many typewritten books written illustrated authors artists according detailed instructions given appellant typical appellant instructions related one author testified appellant insisted books full sex scenes lesbian scenes sex strong rough clearly spelled write sex bluntly make sex scenes strong sex scenes unusual sex scenes men women women women men men wanted scenes women making love women wanted sex scenes lesbian scenes call lesbian described women making love women men making love men spankings scenes sex abnormal irregular fashion another author testified appellant instructed deal graphically darkening flesh flagellation artists testified similar vein appellant instructions regarding illustrations covers books books cheaply prepared paperbound pulps imprinted sales prices several thousand percent costs three printed printer paid per copy depending whether thick thin book printer instructed appellant use appellant name publisher print fictitious name book make name address appellant stored books printer premises paid part printer rent storage space printer filled orders books appellant direction delivering appellant retail store publishers outlet occasion shipping books places appellant paid authors artists printer cash services usually bookstore appellant attacks invalid face contending exceeds first amendment limitations proscribing publications merely sadistic masochistic terms sadistic masochistic impermissibly vague term obscene also impermissibly vague need decide merits first two contentions new york courts held case terms sadistic masochistic well adjectives used describe proscribed books synonymous obscene misc contention term obscene also impermissibly vague fails holding roth indeed definition obscene adopted new york courts interpreting delimits narrower class conduct delimited roth definition people richmond county news thus like statutes roth provides reasonably ascertainable standards guilt appellant also objects invalid applied first books convicted publishing hiring others prepare possessing sale obscene second proof scienter inadequate nature material first amendment prohibits criminal prosecution publication dissemination allegedly obscene books satisfy roth definition obscenity free adopt definitions obscenity extent adopted stay within bounds set constitutional criteria roth definition restrict regulation publication sale books traditionally universally tolerated society new york courts interpreted obscenity cover pornography see people richmond county news quoted note supra since definition obscenity stringent roth definition judgment constitutional criteria satisfied implicit application indeed appellant sole contention regarding nature material books involved prosecution depicting various deviant sexual practices flagellation fetishism lesbianism satisfy requirement appeal prurient interest average person sex instead stimulating erotic disgust sicken reject argument founded unrealistic interpretation requirement material designed primarily disseminated clearly defined deviant sexual group rather public large requirement roth test satisfied dominant theme material taken whole appeals prurient interest sex members group reference average normal person roth foreclose holding regard requirement concept average normal person employed roth serve essentially negative purpose expressing rejection aspect hicklin test regina hicklin made impact susceptible person determinative adjust requirement social realities permitting appeal type material assessed terms sexual interests intended probable recipient group since holding requires recipient group defined specificity terms sexually immature persons also avoids inadequacy facet hicklin test substantial claim made books depicting sexually deviant practices devoid prurient appeal sexually deviant groups evidence fully establishes books specifically conceived marketed groups appellant instructed authors artists prepare books expressly induce purchase persons probably sexually stimulated reason appellant wanted emphasis beatings fetishism clothing irregular clothing sort thing sex scenes women always sex scenes strong certain authors fulfilled purpose appellant furnished source materials caprio variations sexual behavior psychopathia sexualis proof books prurient appeal compare klaw cir proof compelling addition appellant evaluation material confirms finding see ginzburg ante scienter people finkelstein new york appeals authoritatively interpreted require vital element scienter defined required mental element terms reading statute whole clearly indicates manner aware character material attempt distribute punished innocent calculated purveyance filth exorcised emphasis added appellant principal argument insufficient proof scienter argument without merit evidence scienter record consists part appellant instructions artists writers efforts disguise role enterprise published sold books transparency character material question highlighted titles covers illustrations massive number obscene books appellant published hired others prepare possessed sale repetitive quality sequences formats books exorbitant prices marked books evidence amply shows appellant aware character material activity innocent calculated purveyance filth ii appellant claims one books improperly admitted evidence fruits illegal searches seizures claim capable brought appeal petition writ certiorari ed specifically setting federal constitutional right nevertheless since appellant challenged constitutionality prosecution new york courts sustained statute case properly appeal unrestricted notation probable jurisdiction justified appellant briefing search seizure issue flournoy weiner prudential ins cheek nonappealable issue treated however contained petition writ certiorari see ed unrestricted notation probable jurisdiction appeal understood grant writ issue issue thus remains within certiorari jurisdiction may good reason even stage decline decide merits issue much dismiss writ certiorari improvidently granted think case exercise discretion important questions tendered claim presented record sufficient clarity require justify decision appellant standing assert claim regard seizures entirely clear finding extent nature interest two book stores main stem book shop midget book shop books seized state seeks justify basement storeroom seizure part basis consent findings authority printer access storeroom voluntariness alleged consent also maintained seizure storeroom made authority search warrant yet neither affidavit upon warrant issued warrant record finally search seizure issue first amendment aspect alleged massive quality seizures see quantity copies books kansas opinion brennan marcus search warrant record regard inadequate neither evidence findings many total available copies books various bookstores seized impossible determine whether books seized basement storeroom threshold dissemination indeed first amendment aspect apparently presented considered state courts raised appellant jurisdictional statement appeared first time brief merits light circumstances fully apprehended time took case decline reach merits search seizure claim insofar notation probable jurisdiction may regarded grant certiorari writ search seizure issue writ dismissed improvidently granted examination case merits may bring proper focus consideration later indicates grant improvident monrosa carbon black affirmed appendix opinion convictions reviewed counts naming book chances go around impact female sultan satin satellite highness mistress leather educating edna strange passions whipping chorus girls order day bound maritally dance dominant whip cult spankers confessions hours torture bound rubber arduous figure training bondhaven return visit fetterland fearful ordeal restraintland women distress pleasure parade screaming flesh fury firm fully packed try anything twice masque catanis counts naming book violated wrestler betrayal swish bottom raw dames strap returns dangerous years columns agony tainted pleasure intense desire pleasure parade pleasure parade pleasure parade sorority girls stringent initiation terror bizarre museum temptation peggy distress planet venus ways discipline tyrant finishing school perilous assignment bondage correspondence woman impelled eye witness stud broad queen bee footnotes information charged counts violating instance single count named single book although often book basis three counts alleging one three types offenses counts dismissed motion prosecutor outset trial verdicts acquittal entered seven counts end trial remaining counts appellant convicted listed appendix opinion appellant also convicted counts charging violations general business law failing print publisher printer names addresses books appellate division reversed convictions counts appeals affirmed state sought review decision trial divided counts five groups purposes sentencing one group consisted possession counts concerning books seized basement storeroom warehouse second group possession counts concerned books seized appellant retail bookstore publishers outlet third consisted publishing counts fourth consisted counts charging hiring others prepare books fifth consisted counts charging violations general business law sentences one year fine imposed one count first four groups prison sentences first three made consecutive count fourth group made concurrent third group fine imposed one count fifth group sentence suspended convictions counts suspension sentence render moot claims invalidity convictions counts obscene material covered focuses predominantly upon sexually morbid grossly perverse bizarre without artistic scientific purpose justification recognizable insult offers invariably sex human spirit lawrence pornography obscenity differentiated bawdy ribald depicting dirt dirt sake obscene vile rather coarse blow sense merely sensibility smacks times fantasy unreality sexual perversion sickness represents according one thoughtful scholar debauchery sexual faculty murray literature censorship books trial see also lockhart mcclure censorship obscenity developing constitutional standards rev see also people fritch addition foregoing tests imposed decisions interpreted section penal law people richmond county news applicable material may properly termed pornography stringent scienter requirement interpreted people finkelstein also eviscerates much appellant vagueness claim see infra pp see generally boyce motor lines american communications assn douds screws opinion justice douglas ragen gorin hygrade provision sherman omaechevarria idaho plausibly maintained appellant books including dominated descriptions relatively normal heterosexual relationships devoid requisite prurient appeal see manual enterprises day opinion harlan lockhart mcclure censorship obscenity developing constitutional standards rev true material alberts california decided roth resembled deviant material involved issue involving obscenity material us either case basic question decision whether publication sale obscenity however defined criminally punished light first amendment guarantees discussion definition intended develop nuances definition required constitutional guarantees see generally american handbook psychiatry arieti ed description pertinent types deviant sexual groups similar scienter requirement see model penal code commentary model penal code tentative draft cf schwartz morals offenses model penal code rev read judge froessel parenthetical reference knowledge contents books opinion people finkelstein modification definition scienter cf people fritch scienter requirement set text seem matter state law applicable publishers booksellers types activities encompassed within subdivision moreover need us speculate whether scienter requirement also present subdivision making crime hire others prepare obscene books appellant convictions offense involved books publication also convicted constitutional claim asserted possible duplicative character hiring publishing counts first appeal finkelstein defining scienter required decided case tried appellate division appeals affirmed convictions therefore conclude state appellate courts satisfied scienter requirement correctly applied trial counts allege appellant knowledge character books appellant argued omission renders information constitutionally inadequate unlike claim challenges decided appeals marcus search warrant quantity copies books kansas implicated constitutional validity statutory schemes establishing procedures seizing books justice harlan concurring issue obscenity concur judgment affirmance premises stated dissenting opinion book named john cleland memoirs woman pleasure attorney general massachusetts ante respects agree join opinion justice black dissenting affirms convictions prison sentences aggregating three years plus fines totaling imposed appellant mishkin based state charges hired others prepare publish obscene books mishkin possessed books held many cases fourteenth amendment makes first applicable see illustration cases collected concurring opinion speiser randall consequently upon grounds dissented federal sentence imposed upon ginzburg ante sending obscene printed matter mails dissent affirmance state sentence imposed mishkin neither case ginzburg read alleged obscene matter believe reasons stated dissent ginzburg many prior cases without constitutional power censor speech press regardless particular subject discussed think federal judiciary appointed life appropriate tribunal selected interpret constitution thereby mark boundaries government agencies life tenure well reasons federal judiciary least appropriate branch government take censorship responsibilities deciding pictures writings people throughout land permitted see read makes particularized rules people see read determines policies reasonable right thereby performing classical function legislative bodies directly responsible people accordingly wish express objections saddling irksome inevitably unpopular unwholesome task finally deciding personal judgment members pornography whatever means hard core people see read censorship views sex subject constitutional reluctantly compelled say believe tedious unwelcome responsibility finally deciding particular discussions opinions must suppressed country good nation vested governmental institution institutions reverse convictions imposed mishkin sentence imposed ginzburg expressing views sex minor comparison lengthy sentences inexorably bound follow state federal courts pressures prejudices increase grow powerful course sufficient answer assuredly punishments rely power strike cruel unusual punishments eighth amendment distorting stretching amendment reading granting unreviewable power perform legislative function fixing punishments state national offenses offers sadly inadequate solution multitudinous problems generated consider policy censoring thoughts opinions people practical answer concededly almost unanswerable problems think decline act national board censors speech press instead stick clearly authorized constitutional duty adjudicate cases things conduct halfway censorship methods matter laudably motivated judgment protect cherished first amendment freedoms destructive aggressions state national government reverse case announce first fourteenth amendments taken together command neither congress shall pass laws manner abridge freedom speech press whatever subjects discussed think founders nation adopting first amendment meant precisely federal government pass law regulating speech press confine legislation regulation conduct policy first amendment made applicable fourteenth leaves vast power regulate conduct power judgment make expression views crime justice stewart dissenting appellant sentenced three years prison publishing numerous books however tawdry books may pornography publication therefore protected first fourteenth amendments ginzburg ante dissenting opinion judgment reversed see ginzburg ante note dissenting opinion moreover evidence books equivalent pornography eyes particularized group readers cf klaw although new york appeals purported interpret cover calls pornography case makes abundantly clear phrase means limited new york clearly identifiable distinct class material described ginzburg ante note dissenting opinion