Mishkin v. New York

1966-03-21

Headline: Ruling upholds New York convictions for producing and selling hard‑core obscene books, allowing state prosecutors to punish publishers and sellers of explicitly sexual pulp books aimed at particular deviant reader groups.

Holding: The Court affirmed convictions under New York law, ruling the books obscene as applied, finding the State’s knowledge requirement adequate, and upholding publishing, hiring, and possession convictions.

Real World Impact:

Allows states to criminally punish publishers of hard‑core obscene books.
Permits conviction when material targets a specific deviant sexual reader group.
Requires proof the seller knew the character of the material; New York’s standard sufficed.

Topics: obscenity and pornography, publisher liability, free speech and censorship, search and seizure

Summary

Background

A bookstore owner and publisher (the appellant) was tried and convicted in New York for hiring others to prepare, publishing, and possessing for sale many cheaply made sexual “pulp” books. About fifty titles were at issue; many depicted sadomasochistic, fetish, and homosexual scenes and had violent or sexual covers. The state prosecuted under New York Penal Law §1141; state courts affirmed the convictions, and the case reached this Court.

Reasoning

The Court addressed whether the New York law and these convictions violated free speech protections. The majority held that New York’s interpretation of “obscene” was at least as strict as federal standards and therefore constitutional as applied. The Justices also accepted that material aimed at a clearly defined deviant sexual group can satisfy the test for prurient appeal. The Court found sufficient proof that the defendant knew the character of the material—pointing to his instructions to authors and artists, concealment of publishing names, large quantities, repetitive formats, and high marked prices—and so the statute’s knowledge (scienter) requirement was met. The Court declined to decide the search‑and‑seizure objections because the record lacked necessary facts about ownership, consent, and the scope of the seizures.

Real world impact

The decision affirms that a State may criminally punish the production and sale of hard‑core materials as the State defines them, so long as the definition fits constitutional limits and the prosecution proves knowledge. Publishers, bookstore operators, and printers who knowingly produce and distribute such material face criminal exposure. The Court left unresolved some seizure‑procedure questions because the record was inadequate.

Dissents or concurrances

Justice Harlan concurred in part. Justices Black and Stewart dissented: Black argued the Court should not permit any censorship and would reverse; Stewart believed these books were not hard‑core and were protected by free speech.