ginzburg argued december decided march petitioner ginzburg three corporations controlled convicted violating federal obscenity statute mailing three publication expensive magazine dealing sex sexual newsletter short book purporting sexual autobiography prosecution charged publications obscene context production sale attendant publicity besides testimony merit material abundant evidence introduced publications originated sold stock trade business pandering purveying publications openly advertised appeal customers erotic interest mailing privileges sought places salaciously suggestive names circulars magazine newsletter stressed unrestricted expression sex advertising book purported medical psychiatric interest whose distribution confined professional audience dwelt book sexual imagery finding petitioners guilty trial judge applied obscenity standards first enunciated roth appeals affirmed held evidence petitioners deliberately represented accused publications erotically arousing commercially exploited erotica solely sake prurient appeal amply supported trial determination material obscene standards roth case supra mere fact profit sale publication considered close case showing exploitation interests titillation pornography respect material lending exploitation pervasive treatment description sexual matters supports determination material obscene pp affirmed sidney dickstein argued cause petitioners briefs george kaufmann paul bender argued cause pro hac vice special leave brief solicitor general marshall assistant attorney general vinson briefs amici curiae urging reversal filed irwin karp authors league america bernard berkman melvin wulf american civil liberties union et al horace manges marshall berger american book publishers council briefs amici curiae urging affirmance filed charles keating james clancy citizens decent literature et al justice brennan delivered opinion judge sitting without jury district eastern district pennsylvania convicted petitioner ginzburg three corporations controlled upon counts indictment charging violation federal obscenity statute supp count alleged resident eastern district received mailed matter either one three publications challenged obscene advertising telling publications might obtained appeals third circuit affirmed granted certiorari affirm since petitioners argue trial judge misconceived failed apply standards first enunciated roth serious question whether standards correctly applied cases decided obscenity questions since roth regarded materials sufficient determination question present case however prosecution charged offense context circumstances production sale publicity assumed standing alone publications might obscene agree question obscenity may include consideration setting publications presented aid determining question obscenity assume without deciding prosecution succeeded otherwise mishkin new york post courts view publications background commercial exploitation erotica solely sake prurient appeal record regard amply supports decision trial judge mailing three publications offended statute three publications eros magazine expensive format liaison newsletter housewife handbook selective promiscuity hereinafter handbook short book issue eros specified indictment vol contains articles subject love sex sexual relations specified issue liaison vol contains prefatory letter editors announcing dedication keeping sex art preventing becoming science remainder issue consists digests two articles concerning sex sexual relations earlier appeared professional journals report interview psychotherapist favors broadest license sexual relationships trial judge noted hile treatment largely superficial presented entirely without restraint kind according defendants expert entirely without literary merit handbook purports sexual autobiography detailing complete candor author sexual experiences age age text includes prefatory concluding sections book elaborate views subjects sex education children laws regulating private consensual adult sexual practices equality women sexual relationships claimed trial women find book valuable example marriage manual aid sex education children besides testimony merit material abundant evidence show accused publications originated sold stock trade sordid business pandering business purveying textual graphic matter openly advertised appeal erotic interest customers eros early sought mailing privileges postmasters intercourse blue ball pennsylvania trial found obvious hamlets chosen value names furthering petitioners efforts sell publications basis salacious appeal facilities post offices inadequate handle anticipated volume mail privileges denied mailing privileges obtained postmaster middlesex new jersey eros liaison thereafter mailed several million circulars soliciting subscriptions post office copies handbook mailed leer sensualist also permeates advertising three publications circulars sent eros liaison stressed sexual candor respective publications openly boasted publishers take full advantage regarded unrestricted license allowed law expression sex sexual matters advertising handbook apparently mailed new york consisted almost entirely reproduction introduction book written one albert ellis although alludes book informational value putative therapeutic usefulness remarks preoccupied book sexual imagery solicitation indiscriminate limited physicians psychiatrists might independently discern book therapeutic worth inserted advertisement slip labeled guarantee reading documentary books unconditionally guarantees full refund price housewife handbook selective promiscuity book fails reach post office censorship interference similar slips appeared advertising eros liaison highlighted gloss petitioners put publications eliminating doubt purchaser asked buy evidence view relevant determining ultimate question obscenity context record serves resolve ambiguity doubt deliberate representation petitioners publications erotically arousing example stimulated reader accept prurient looks titillation saving intellectual content similarly representation tend force public confrontation potentially offensive aspects work brazenness appeal heightens offensiveness publications offended material circumstances presentation dissemination material equally relevant determining whether social importance claimed material courtroom circumstances pretense reality whether basis upon traded marketplace spurious claim litigation purposes purveyor sole emphasis sexually provocative aspects publications fact may decisive determination obscenity certainly prosecution necessarily imply suppression materials involved fact originate used subject pandering relevant application roth test proposition argued eros example trial judge improperly found magazine obscene whole since concluded four articles predominantly appealed prurient interest substantially exceeded community standards candor articles admittedly trial judge found deliberate studied arrangement eros editorialized purpose appealing predominantly prurient interest insulate inclusion material however erroneous conclusion might unsupported evidence pandering record supports eros created represented sold solely claimed instrument sexual stimulation bring like publications pervasive treatment sex sexual matters rendered available exploitation make business pandering widespread weakness titillation pornography petitioners expert agreed correctly think object work material gain creator appeal sexual curiosity appetite work pornographic words animating sensual detail give publication salacious cast petitioners reinforced conceded government otherwise debatable conclusion similar analysis applies judgment regarding handbook bulk proofs directed social importance concerned publication selling publication rights petitioners author printed privately sent circulars persons whose names appeared membership lists medical psychiatric associations asserting value adjunct therapy sales resulted solicitation number witnesses testified found work useful professional practice government seriously contest claim book worth controlled even neutral environment petitioners however sell book limited audience focus claims supposed therapeutic educational value rather deliberately emphasized sexually provocative aspects work order catch salaciously disposed proclaimed obscenity conclude erred taking evaluation face value declaring book whole obscene despite evidence decision rebhuhn persuasive authority conclusion prosecution predecessor brought context pandering publications assumed useful scholars members learned professions books involved written authors proved many instances men scientific standing anthropologists psychiatrists appeals second circuit therefore assumed many books entitled protection first amendment lawfully passed mails directed likely use purposes written evidence defendants disseminated proper use woefully misused misuse constituted gravamen crime speaking affirming conviction judge learned hand said works place though limited one anthropology psychotherapy might also lawfully sold laymen wished seriously study sexual practices savage barbarous peoples sexual aberrations words obscene per se several decisions held statute circumstances forbid dissemination publications however case bar prosecution succeeded showed defendants indiscriminately flooded mails advertisements plainly designed merely catch prurient though guise distributing works scientific literary merit mean distributor works charged duty insure shall reach proper hands need say care must use defendants exceeded possible limit circulars appeals salaciously disposed fact finder failed pierce fragile screen set cover purpose important stress analysis simply elaborates test obscenity vel non material must judged exploitation interests titillation pornography shown respect material lending exploitation pervasive treatment description sexual matters evidence may support determination material obscene even though contexts material escape condemnation petitioners raise several procedural objections principally directed findings accompanied trial memorandum opinion fed rules crim proc even assumption petitioners objections well taken perceive error affecting substantial rights affirmed footnotes federal obscenity statute provides pertinent part every obscene lewd lascivious indecent filthy vile article matter thing device cr substance every written printed card letter circular book pamphlet advertisement notice kind giving information directly indirectly means mentioned matters may obtained declared nonmailable matter shall conveyed mails delivered post office letter carrier whoever knowingly uses mails mailing carriage mails delivery anything declared section nonmailable shall fined imprisoned five years first offense however understood approving aspects trial judge exegesis roth example remarks community whole proper consideration community society children ages psychotics susceptible elements set pace average adult reader taste overlooked part community compare butler michigan government stipulated trial circulars advertising publications obscene therefore convictions counts mailing advertising stand mailing publications offended statute affirmance convictions mailing eros liaison based upon characteristics whole including editorial formats upon particular articles contained digested excerpted thus decide whether particular articles example eros although identified trial judge offensive condemned obscene whatever setting similarly accept government concession note infra prosecution rested upon manner petitioners sold handbook thus affirmance implies agreement trial judge characterizations book outside setting suggested dissent petitioners unaware record established used support approach petitioners afforded opportunity new trial however trial transcript clearly reveals several points government announced theory made mode distribution relevant determination obscenity trial admitted evidence otherwise irrelevant toward end roth supra warren concurring evidence relating petitioners efforts secure mailing privileges post offices contrary suggestion justice harlan dissent introduced purpose supporting finding scienter stipulated prior trial government position revealed following colloquy occurred sought introduce letter postmaster blue ball pennsylvania signed letter creamer signed frank brady associate publisher ginzburg eros magazine incorporated stationery objection shapiro way relevant particular issue publication upon defendant indicted view even identification respect particular issue doubtful relevance event anything else say creamer honor pleases statement letter indicating advantageous publication disseminated blue ball pennsylvania post office think clearly goes intent purpose publishing magazines least clearly establishes one reasons disseminating material admitted thus one eros advertisement claimed eros child times result recent decisions realistically interpreted america obscenity laws given country new breadth freedom expression eros takes full advantage new freedom expression magazine sexual candor another lavish spread eros new quarterly devoted subjects love sex short weeks since birth eros established rave american intellectual community rage prudes everywhere wonder eros handles subjects love sex complete candor publication magazine frankly avowedly concerned erotica enabled recent decisions ruling literary piece painting though explicitly sexual content right published genuine work art eros genuine work art undisclosed number advertisements liaison mailed outer envelopes ads ask among chosen first line advertisement eliminates ambiguity member sexual elite continues among happy enlightened individuals believe man woman make love without feeling pangs conscience read love sex discuss without blushing stammering know important new periodical called liaison short liaison cupid chronicle though liaison handles subjects love sex complete candor wish make clear scandal sheet written man street liaison aimed intelligent educated adults accept love sex part life venture say read first issue liaison eagerly awaited piece mail note infra much additional evidence supporting conclusion petitioners pandering one petitioners former writers liaison example testified editorial goals practices publication schwartz morals offenses model penal code rev government drew distinction author petitioners solicitation sentencing proceeding attorney stated author distributing physicians never widespread indiscriminate distribution handbook consequently post office department interfere ginzburg distributed sold advertised books solely physicians course morning regard housewife handbook proposed official draft ali model penal code likewise recognizes question pandering relevant obscenity issue tentative draft may pp schwartz supra see craig suppressed books compare grove press christenberry supp aff cir one book entitled ulysses cir affirming supp see also trial lady chatterly regina penguin books rolph ed conclusion consistent statutory scheme although referring obscene matter may appear deal qualities material abstract settled mode distribution may significant part determination obscenity material involved rebhuhn supra statute creates criminal remedy cf manual enterprises day opinion brennan readily admits interpretation compare photographs supp see new york times sullivan smith california see valentine chrestensen viewed handbills purporting contain protected expression merely commercial advertising compare decision jamison texas murdock pennsylvania speech characteristics advertising held integral part religious discussions hence protected material sold solely produce sexual arousal like commercial advertising escape regulation dressed speech contexts might recognized speech compare breard alexandria martin struthers cf kovacs cooper giboney empire storage cox louisiana one advertises sells work basis prurient appeal threatened perhaps inherent residual vagueness roth test cf dombrowski pfister behavior central objectives criminal obscenity laws ali model penal code tentative draft may pp comments proposed official draft supra schwartz morals offenses model penal code rev paul schwartz federal censorship obscenity mail see mishkin new york post justice black dissenting one stark fact emerges clarity confusing welter opinions thousands words written two cases today fact ginzburg petitioner finally authoritatively condemned serve five years prison distributing printed matter sex neither ginzburg anyone else possibly known criminal since said many times believe federal government without power whatever constitution put type burden speech expression ideas kind distinguished conduct agree part ii dissent brother douglas case reverse ginzburg conviction ground alone even assuming however correct holding today congress power clamp official censorship subjects selected ways approved believe federal obscenity statute enacted congress enforced ginzburg case held invalid two grounds criminal punishment government although universally recognized necessity limited areas conduct exercise one government awesome dangerous powers consequently wise good governments make possible efforts hedge dangerous power restricting within easily identifiable boundaries experience wisdom flowing experience long ago led belief agents government vested power discretion define punish criminal past conduct clearly defined crime advance end least part written laws came marking boundaries conduct public agents thereafter impose punishment upon people contrast bad governments either wrote general rules conduct leaving highly important task unbridled discretion government agents moment trial sometimes history tells us wrote laws unknown tongue people understand else placed written laws inaccessible spots people read seems harsh expedients used bad governments punish people conduct previously clearly marked criminal used put ginzburg prison five years agree brother harlan effect rewritten federal obscenity statute thereby imposed ginzburg standards criteria congress never thought think certainly adopt consequently ginzburg see conviction sentence affirmed upon basis statute amended violation amended statute charged courts affirmance said violates due process cole arkansas compare shuttlesworth birmingham quite apart vice affirmance however think criteria declared majority today guidelines jury determine whether ginzburg anyone else punished common criminal publishing circulating obscene material vague meaningless practically leave fate person charged violating censorship statutes unbridled discretion whim caprice judge jury tries shall separately discuss three elements majority seems consider material proving obscenity first element considered necessary determining obscenity dominant theme material taken whole must appeal prurient interest sex seems quite apparent human beings serving either judges jurors expected give sort decision element even remotely promise kind uniformity enforcement law conclusion individual judge juror reach whether material appeals prurient interest sex depend largely long run upon testimony witnesses given ordinary criminal cases conduct scrutiny depend large extent upon judge juror personality habits inclinations attitudes individual characteristics one community one courthouse matter condemned obscene criterion another community maybe miles away another courthouse community material given clean bill health final analysis submission issue judge jury amounts practically nothing request judge juror assert personal beliefs whether matter allowed legally distributed upon subjective determination law becomes certain first last time second element determining obscenity described brother brennan material must patently offensive affronts contemporary community standards relating description representation sexual matters nothing see position adopted majority today nothing said previous opinions leaves kind certainty whether community standards referred even definite areas mentioned capable assessing community standards subject one expect application standards jurors mississippi new york city vermont california guilt innocence defendant charged obscenity must depend final analysis upon personal judgment attitudes particular individuals place trial held one must remember federal government power try man mailing obscene matter miles home third element three brethren think required establish obscenity material must utterly without redeeming social value element seems uncertain even uncertain unknown substance milky way free society contemplated bill rights find little defense leaving liberty american individuals subject judgment judge jury whether material provokes thought stimulates desire utterly without redeeming social value whether particular treatment particular subject without social value evolving dynamic society question upon uniform agreement possibly reached among politicians statesmen professors philosophers scientists religious groups type group assessment social values individual judges jurors think dangerous technique government utilize determining whether man stays penitentiary conclusion certainly fourteen separate opinions handed three cases today person even learned judge much less layman capable knowing advance ultimate decision particular case whether certain material comes within area obscenity term confused today reason even appears result three cases today country far along way censorship subjects people talk write need commit constitutional transgressions leaving people dark literature words symbols distributed mails make man criminal bad obnoxious believe governmental censorship nation accepted first amendment basic ideal freedom compelled say censorship stamp certain books literature illegal advance publication conviction ways preferable unpredictable censorship drifted close part dissent saying think first amendment forbids kind type nature governmental censorship views distinguished conduct ii obvious effect decisions three obscenity cases handed today make exceedingly dangerous people discuss either orally writing anything sex sex fact life pervasive influence felt throughout world ignored like facts life lead difficulty trouble sorrow pain may lead abuses many instances words need spoken order people know subject one pleasantly interwoven human activities involves substance creation life subject people bound consider discuss whatever laws passed government try suppress though suggest way solve problems may arise sex discussions sex one thing confident federal censorship answer problems find difficult see talk sex placed kind censorship approves without subjecting society dangers anticipate moment avoid exactly dangers first amendment written adopted follow course believe required first amendment recognize sex least much aspect life much part society discussion made crime reverse case see mishkin new york post memoirs massachusetts ante understand opinions case two related cases decided today three things must proven establish material obscene brief material must appeal prurient interest must patently offensive must redeeming social value justice brennan opinion memoirs massachusetts ante joined chief justice justice fortas opinion three elements must coalesce material labeled obscene justice clark dissenting opinion memoirs indicates however proof first two elements alone enough show obscenity proof third material must utterly without redeeming social value aid proving first two dissenting opinion memoirs justice white material obscene predominant theme appeals prurient interest manner exceeding customary limits candor opinion justice white social importance test relevant determining predominant prurient interest material see opinion justice brennan concurred justice goldberg jacobellis ohio compare dissent case chief justice joined justice clark justice douglas dissenting today condemnation use sex symbols sell literature engrafts another exception first amendment rights unwarranted exception concerning obscenity new exception condemns advertising technique old history advertisements best magazines thighs ankles calves bosoms eyes hair draw potential buyer attention lotions tires food liquor clothing autos even insurance policies sexy advertisement neither adds detracts quality merchandise offered sale see adds detracts one whit legality book distributed book stand irrespective reasons written wiles used selling imagine promotional effort make chapters song solomon less worthy first amendment protection unostentatious inclusion average edition bible variety contexts insisted preservation rights safeguarded first amendment requires vigilance recognized criminal prosecution statute regulating expression usually involves imponderables contingencies may inhibit full exercise first amendment freedoms dombrowski pfister uncertainty distinguishing characteristic legal principle case pandering theory free dissemination ideas may loser smith california today however takes course despite admonition speiser randall separation legitimate illegitimate speech calls sensitive tools today due regard frailties free expression led us reject insensitive procedures clumsy vague overbroad substantive rules even realm obscenity emphasized roth door barring federal state intrusion area left ajar must kept tightly closed opened slightest crack necessary prevent encroachment upon important interests certainly without aura sex promotion publications contents said utterly without redeeming social importance roth supra one publications condemned today housewife handbook selective promiscuity number doctors psychiatrists thought clinical value one clinical psychologist said like recommend example people church read especially marital difficulties order increase tolerance understanding one another much book think suitable reading teen age people especially teen age young women empathize strongly growing period rey anthony relates read disabused unrealistic notions marriage sexual experiences think make good reading average man help gain better appreciation female sexuality rev george von hilsheimer iii baptist minister testified used book insistently pastoral counseling formal psychological counseling book history unhappy history series sexual psychological misadventures encounter quite typical average american woman quite typical average american men fact book history woman sexual adventures outside normally accepted bounds marriage course americans today sort serial polygamy teach advocate gives women give book least sense experiences unusual sexual failures unusual guilty say sexual failures newsletter liaison one defendants witnesses critic dwight macdonald testified opinion go beyond customary limits candor tolerated community extremely tasteless vulgar repulsive issue may perhaps overstate case liaison admittedly little collection dirty jokes poems possible exception interview albert ellis material find wisdom words late judge jerome frank whose views judges know best lawyers judges take judicial notice many gatherings lawyers bar association alumni leading law schools tales told fully obscene many distributed men convicted violation obscenity statute one thinks lyrics sung certain respected conservative member faculty great considers distinguished alma mater many judges sitting upper courts eros affirms judgment lower found four many articles essays obscene one four articles consisted numerous ribald limericks views expressed liaison apply equal force another photo essay entitled black white color dealt interracial love subject undoubtedly offensive members society critic dwight macdonald testified suppose object idea negro white person sex together course horrified artistic point view thought good fact thought done great taste know say never heard obviously extremely competent accomplished photographer think outstandingly beautiful artistic photographs imagine theme treated lyrical delicate manner done might add course photography appropriate hands artistic instrument particular photographer shown great awareness compositional devices patterns long history western art contrast color two bodies course presented certain opportunities two models color taken rather extraordinary delicate advantage contrasts thought extremely interesting important study remarkable quotations woman put sense sexual intercourse extremely eloquent way never seen woman point view thought point made difference man woman approach sexual intercourse well made important tracts publishers go prison concern normal sex homosexuality masochistic yearning probably present everyone dominant masochism desire punished subdued broad frame reference desire may expressed longing whipped lashed bound gagged cruelly treated unlawful cater needs group sure somewhat offbeat nonconformist odd realm criminal conduct ideas tastes like chopin others like rock roll normal masochistic deviant respects homosexual another group also represented translates mundane articles sexual symbols group like embracing masochism anathema stable majority freedom press expression denied barred communicating symbolisms important today speaks social value mean value majority minority value cognizable masochistic group one deviant group another important members groups communicate communication written word forbidden wise enough might know communication may greater therapeutical value sermon normal community ever offer communication value masochistic community others deviant community said utterly without redeeming social importance redeeming importance took quite different stance one olesen unanimously reversed decision appeals without opinion holding accurately described lockhart mcclure obscenity censorship core constitutional issue obscene utah rev magazine homosexuals entitled one homosexual magazine definitely scientific critical magazine appears written appeal tastes interests homosexuals find difficult say publication social importance caters taste unorthodox amongst us members among last say orthodox literature omniscience required whole society possess ii leads conclusion previously noted first amendment allows ideas expressed whether orthodox popular offbeat repulsive think permissible draw lines good bad true constitutional mandate let ideas alone constitution permitted reasonable regulation freedom expression constitutions nations field legislative judiciary much leeway charter regulation control expression barred government sit reveal truth people left pick choose competing offerings compulsion take read repulsive spend one time poring government bulletins political tracts theological treatises theory people mature enough pick choose recognize trash see attracted literature satisfies deepest need hopefully move plateau plateau finally reach world enduring ideas think ideal free society written constitution business acting censors endowing group censorship powers shocking us send prison anyone publishing anything especially tracts distant incitement action ones us opinion applies also mishkin new york post marcus search warrant quantity books kansas freedman maryland butler michigan smith california manual enterprises day opinion harlan premise ginzburg represented publications sexually arousing however recognized roth ex obscenity synonymous obscene material material deals sex manner appealing prurient interest shameful morbid interest nudity sex excretion emphasis added advertisements publications majority quotes ante promised candor treatment matters pertaining sex time proclaimed artistic otherwise socially valuable effect advertisements represented publications obscene rev von hilsheimer obtained university miami graduate work psychology studied analysis training therapy thereafter graduate work theological student received degree doctor divinity university chicago extensive experience group counselor lecturer family counselor consultant president kennedy study group national voluntary services member board directors mobilization youth roth concurring opinion kronhausens wrote pornography law extensive literary comment book publication generated demonstrates utterly without redeeming social importance see new york review books new yorker pp library journal pp new york times book review time pp newsweek pp new republic pp see psychopathia sexualis et seq eisler man wolf et seq stekel sadism masochism passim bergler principles passim reik masochism modern man passim appeals summarized contents follows article sappho remembered story lesbian influence young girl twenty years age actually nearer sixteen many essential ways maturity struggle choose life lesbian normal married life childhood sweetheart lesbian affair roommate college resulting lesbian expulsion college recounted bring jealousy angle climax reached young girl gives chance normal married life live lesbian article nothing cheap pornography calculated promote lesbianism falls far short dealing homosexuality scientific historical critical point view poem lord samuel lord montagu alleged homosexual activities lord montagu british peers contains warning males avoid public toilets lord samuel sniffing round drains piccadilly london stories heaven til end pages similar story sappho remembered except relate activities homosexuals rather lesbians decisions also reversed judgments condemning publications catering wider range literary tastes seem tolerate today see mounce vacating remanding nudist magazines sunshine book summerfield reversing app nudist magazine tralins gerstein reversing book titled pleasure business depicting happenings house prostitution grove press gerstein reversing book titled tropic cancer henry miller see constitution union burma art reprinted peaslee constitutions nations ed constitution india art ii peaslee op cit supra constitution ireland art ii peaslee op cit supra federal constitution swiss confederation art iii peaslee op cit supra constitution libya art peaslee constitutions nations ed constitution nigeria art constitution zambia art pp justice harlan dissenting reverse convictions ginzburg three corporate federal obscenity statute convicted ed concerned unlawful shipment nonmailable matter opinion announcing judgment manual enterprises day background statute assessed focus seen solely character material question premise past cases arising statute predecessors decided see roth believe statute federal government constitutionally restricted banning mails hardcore pornography see separate opinion roth supra dissenting opinion book named john cleland memoirs attorney general massachusetts ante think maintained material question falls within narrow class believe excluded mails recognizes difficulty justifying convictions majority refuses approve trial judge exegesis roth note ante declines approve trial characterizations handbook outside setting majority first time announces crucial conviction note ante moreover accepts government concession handbook certain worth seen something labeled controlled even neutral environment ante majority notes publications assumed adjudged obscene abstract ante fact last analysis sustains convictions express assumption items held obscene viewing strictly obscene ante curious result reached elaboration theory obscenity entirely unrelated language purposes history federal statute applied certainly different test used trial convict defendants precise holding obscure take objective test roth ultimately focuses material question supplemented another test goes question whether mailer aim pander titillate mails questionable matter although clear whether majority views panderer test statutory gloss constitutional doctrine read opinion latter category first amendment obscenity area longer fully protects material face nonobscene material must also examined light defendant conduct attitude motives seems mere euphemism allowing punishment person mails otherwise constitutionally protected material jury judge may find business agreeable state enact panderer statute police power little doubt subject clear drafting avoid attacks vagueness equal protection grounds statute constitutional possibly might true federal government acting postal commerce powers fear done today effect write new statute without sharply focused definitions standards necessary sensitive area casting dubious gloss straightforward statute see stat astonishing piece judicial improvisation seems perfectly clear theory convictions sustained quite different basis case tried decided district affirmed appeals district found handbook patently offensive face without slightest redeeming social artistic literary importance value held credible evidence handbook slightest valid scientific importance treatment individuals clinical psychiatry psychology field medicine supp trial made similar findings eros liaison majority opinion read casts doubts upon explicit findings handbook interprets offhand remark government prosecutor sentencing hearing concession majority accepts prosecution rested upon conduct petitioner explicitly refuses accept trial judge characterizations book take implied rejection findings fact upon conviction fact based note ante similarly eros implies finding obscenity might erroneous supported evidence pandering ante characterizes eros decision aside pandering otherwise debatable conclusion ante anything new pandering dimension mailing statute return case new trial petitioners least entitled day question guilt ultimately come depend compare action memoirs massachusetts ante also decided today affords state opportunity prove subsequent prosecution accused purveyor fanny hill fact used pandering methods secure distribution book new trial given present case read opinion burden government show motives defendants pander widespread weakness titillation pornography ante suppose analysis type individuals receiving eros handbook relevant ordinary people interested purchasing eros handbook one dozen personal reasons might evidence pandering general public hand suggests defendants exonerate showing sent works perhaps primarily standards set psychiatrists professional people also relevant apparently nature mailer advertisements representations conceivably someone mailing public selective portions recognized classic avowed purpose titillation run risk conviction mailing nonmailable matter presumably post office theory might attempt ban lady chatterley lover lower found bannable abstract application roth grove press christenberry suppose government show grove press pandering people interested book sexual passages lawrence social theories literary technique properly invoked even opinions judge hand one book entitled ulysses judge woolsey district supp might rendered nugatory mailer ulysses found titillating readers coarse blasphemous obscene portions rather piloting intricacies joyce stream consciousness past trial petitioners evidence defendant conduct admissible show relevant intent evidence conduct also attitude motive admissible primary question whether material mailed obscene difficulty seeing inquiries logically related question whether particular work obscene addition think test obscenity impermissibly vague unwarranted anything first amendment reverse judgments prevailing opinion memoirs massachusetts ante makes clearer constitutional ramifications new doctrine although one point opinion appeals referred shoddy business pandering reading opinion whole plainly indicates appeals affirm convictions basis sustains show pandering relies heavily fact defendants sought mailing privileges postmasters intercourse blue ball pennsylvania settling upon middlesex new jersey mailing point ante pp evidence admitted however show required scienter see appeal appeals petitioner ginzburg asserted evidence shows intent petitioner eros magazine erroneously used appeals held point de minimis ground parties stipulated necessary intent brief likewise viewed evidence relating solely scienter nowhere attempt sustain convictions anything like pandering theory justice stewart dissenting ralph ginzburg sentenced five years prison sending mail copies magazine pamphlet book testimony trial publications possess artistic social merit personally hard time discerning material strikes vulgar unedifying first amendment means anything means man sent prison merely distributing publications offend judge esthetic sensibilities mine censorship reflects society lack confidence hallmark authoritarian regime long ago wrote first amendment charted different course believed society truly strong truly free realm expression put faith better worse enlightened choice people free interference policeman intrusive thumb judge heavy hand constitution protects coarse expression well refined vulgarity less elegance book worthless may convey something value neighbor free society constitution committed us choose mandate constitution room restricted view decision roth case held obscenity within area constitutionally protected speech press characterized obscenity utterly without redeeming social importance deals sex manner appealing prurient interest goes substantially beyond customary limits candor description representation matters manual enterprises day joined justice harlan opinion adding patent indecency essential element constitutionally protected exist distinct easily identifiable class material elements coalesce alone think government may constitutionally suppress whether criminal civil sanctions referred material pornography without trying define jacobellis ohio concurring opinion order prevent possible misunderstanding set margin description borrowed solicitor general brief kind thing reference see also lockhart mcclure censorship obscenity developing constitutional standards rev although arguments made contrary accept proposition general dissemination matter description may suppressed valid laws long almost universal judgment society see roth material sort wholly different publications mailed ginzburg present case different degree kind today appears concede materials ginzburg mailed protected first amendment says ginzburg still sentenced five years prison mailing says guilty commercial exploitation pandering titillation ginzburg charged commercial exploitation charged pandering charged titillation therefore affirm conviction grounds even otherwise valid deny due process law cole arkansas grounds course otherwise valid neither statute ginzburg convicted federal statute know makes commercial exploitation pandering titillation criminal offense criminal law sought terms elusively defined course unconstitutionally vague therefore void matters developed dissenting opinions brethren simply note fully agree however another aspect opinion case even regrettable today assumes power deny ralph ginzburg protection first amendment disapproves sordid business power possess first amendment protects us even hand applies ralph ginzburg less completeness force putnam sons upholding enforcing bill rights power pick choose lose sight fixed star constitutional adjudication lose way forsake government law left government big brother dissent different constitutional questions arise case involving assault upon individual privacy publication manner blatant obtrusive make difficult impossible unwilling individual avoid exposure cf breard alexandria public utilities commission district columbia pollak griswold connecticut still considerations might come play respect laws limited effect deemed insufficiently adult make informed choice issues tendered case accurate say roth opinion fashioned standards obscenity explicitly stated issue presented obscenity material involved subsequent case majority able agree standards materials include photographs still motion picture pretense artistic value graphically depicting acts sexual intercourse including various acts sodomy sadism sometimes involving several participants scenes character also include strips drawings format grossly depicting similar activities exaggerated fashion addition pamphlets booklets sometimes photographic illustrations verbally describing activities bizarre manner attempt whatsoever afford portrayals character situation pretense literary value material conceivably characterized embodying communication ideas artistic values inviolate first amendment oral argument advised government counsel vast majority prosecutions statute involve material nature prosecutions usually result guilty pleas never come see memoirs massachusetts ante