GINZBURG et al. v. UNITED STATES

Legal Principle at Issue

Whether three publications that dealt openly with sexual matter were legally obscene under the Roth v. United States (1957) test and without First Amendment protection.

Action

The Supreme Court affirmed the trial court and the Third Circuit, both of which had held the material legally obscene.

Facts/Syllabus

The defendant’s publications were found to be permeated with the “leer of the sensualist” because they discussed sexual matter “without restraint” and engaged in “pandering,” “the business of purveying textual or graphic matter openly advertised to appeal to the erotic interest of their customers.”

Importance of Case

The Supreme Court held that the defendant’s publications were legally obscene under Roth. The Court relied on expert testimony, the materials themselves, and the defendant’s engagement in pandering to support this holding. The Court noted that “in close cases evidence of pandering may be probative with respect to the nature of the material in question and thus satisfy the Roth test,” essentially tying the defendant’s motives to the materials themselves in order to establish legal obscenity under Roth. The Roth test is no longer used. The current obscenity test is the Miller test, from Miller v. California (1973).