GINSBERG v. NEW YORK 390 U.S. 629 (1968)

In Ginsberg the Supreme Court upheld the validity under the first amendment and fourteenth amendment of a New York criminal statute that prohibited the sale to persons under seventeen years of age of sexually explicit printed materials that would not be obscene for adults. Drawing upon the criteria suggested in roth v. united states (1957) and memoirs v. massachusetts (1966), the New York statute broadly defined sexually explicit descriptions or representations as "harmful to minors" when the material: "(i) predominantly appeals to the prurient, shameful or morbid interest of minors, and (ii) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors, and (iii) is utterly without redeeming social importance for minors." Convicted for selling two "girlie" magazines to a sixteen-year-old, Ginsberg claimed that the statute was unconstitutional because the state was without the power to deny persons younger than seventeen access to materials that were not obscene for adults. Justice william j. brennan, for the 6–3 majority, rejected this challenge by introducing the concept of "variable obscenity." According to the majority, the New York statute had "simply adjust[ed] the definition of obscenity to social realities by permitting the appeal of this type of material to be assessed in terms of the sexual interests … of such minors."

Although the decision rests on the legitimacy of protecting children from harm, the Court found it unnecessary to decide whether persons under seventeen were caused harm by exposure to materials proscribed by the statute. After suggesting that scientific studies neither proved nor disproved a causal connection, the majority held that it was "not irrational" for the New York legislature to find that "exposure to material condemned by the statute is harmful to minors."

To what extent does a minor's own First Amendment rights constrain the state's power to limit a minor's access to written or pictorial materials? Because of the nature of Ginsberg's challenge to the statute, the Court did not concern itself with the question whether a minor might have the constitutional right to buy "girlie" magazines. In erznoznik v. jacksonville (1975) the Court later indicated that while the First Amendment rights of minors are not coextensive with those of adults, "minors are entitled to a significant measure of First Amendment protection" and that under the Ginsberg variable obscenity standard "all nudity" in films "cannot be deemed as obscene even as to minors."

Robert H. Mnookin
(1986)

(see also: Children's Rights.)