Mishkin v. New York (1965)
- Docket
- 49
- Decided
- 1965-01-01
- Category
- General
Summary
Question: Was New York’s anti-obscenity statute impermissibly vague? Were Mishkin’s books properly found to be obscene? Must the government show that Mishkin knew the books were obscene? Conclusion: No, yes, and yes. The Court upheld Mishkin’s conviction, in a 6-3 decision written by Justice William J. Brennan, Jr. Justice Brennan rejected Mishkin’s argument that the New York statute’s use of the terms “sadistic” and “masochistic” was impermissibly vague, because the state’s definition was narrower than used by the Court in Roth v. United States . The Court also rejected Mishkin’s argument that the material did not meet the Roth test’s prurient-appeal requirement in that it did not appeal to the prurient interests of the average person. The Court held that the Roth test is satisfied if the dominant theme of material appeals to the prurient interests of members of a sexual subgroup. It pointed to evidence that Mishkin instructed the books to be specifically conceived and marketed to appeal to “sexually deviant groups”. The Court also rejected Mishkin’s argument that there was insufficient proof that he knew the material was obscene. The Court noted Mishkin’s instructions to his artists and writers, his efforts to disguise his role in the enterprise by publishing the books anonymously, and the sheer volume of material. According to the Court, this evidence showed Mishkin was aware of the character of the material. Justice Hugo Black dissented, arguing that the Court and lower federal courts are without power to censor obscene material regardless of its subject matter. Justice Potter Stewart dissented, arguing that the material in question was protected by the First and Fourteenth Amendments. Justice William O. Douglas dissented, in a combined response to the majorities of Mishkin and Ginzburg v. United States . He referenced testimony at trial indicating that several of the books in question have redeeming social value. He also questioned New York's right to limit publishers' ability to cater to nonconformist groups.