Ginzburg v. United States

Background

A judge convicted a publisher and three corporations of mailing three challenged publications: EROS (a glossy magazine), Liaison (a bi-weekly newsletter), and The Housewife’s Handbook on Selective Promiscuity (a short book). The Government proved the publishers solicited wide sales with sexually charged advertising, sought mailing points with sexually suggestive town names, mailed millions of circulars, and used indiscriminate mailings rather than limiting distribution to professionals. The Court of Appeals affirmed and the Supreme Court granted review.

Reasoning

The central question was whether the materials could be judged obscene by looking not only at their text but also at how they were produced, advertised, and sold. The majority applied the obscenity standards announced in Roth but said evidence of commercial exploitation and “pandering” — selling primarily for sexual titillation — is relevant to decide obscenity. The Court accepted that some items might not be obscene in the abstract but found the record showed deliberate marketing for prurient appeal, so the mailings violated the statute. The Government had conceded the advertising itself was not obscene, but the Court held the publications’ presentation and distribution could make them nonmailable.

Real world impact

Publishers who package and market sexual material as erotically arousing risk criminal mail prosecutions even when portions of their works have claimed social or professional uses. The ruling emphasizes how broad advertising and indiscriminate solicitation can be used as evidence to prove obscenity. The Court noted such convictions do not categorically bar proper, limited distribution in professional or controlled contexts.

Dissents or concurrances

Several Justices dissented, arguing the decision expands obscenity law in vague ways, threatens free expression, and may deny due process by convicting on marketing conduct not clearly criminalized in the statute.