Fatima Zuhra K.

Marohom 4A 22 July 2019

Facts:

Appellant operates a stationery store and luncheonette with his wife in Bellmore, Long Island.
They have a lunch counter, and, also sell magazines including some so-called “girlie” magazines.
Appellant was prosecuted under two informations, each in two counts, which charged that he
personally sold a 16 year old boy two “girlie” magazines on each of two dates in October 1965, in
violation of the New York Penal Law which makes it unlawful to sell to a minor under 17 years old any
picture which depicts nudity and which is harmful to minors. He was tried before a judge without a jury
in Nassau County District Court and was found guilty on both counts. The judge found that the
magazines contained pictures which depicted female “nudity”.

Issues:

1. Whether the state has the power to define the material’s obscenity on the basis of its
appeal to minors, and thus exclude material so defined from the area of protected
expression.
2. Whether the Statute in any event is void for vagueness particularly the definition of
obscenity as ‘harmful to minors’ that an honest distributor of publications cannot know
when he might be held to violate such law.

Rulings:

1. Yes because the legislature has the “power to employ variable concepts of obscenity”. The
Court in sustaining the state power to enact such law said in Bookcase Inc. vs Broderick:

‘Material which is protected for distribution in adults is not necessarily constitutionally protected
from restriction upon its dissemination to children. In other words, the concept of obscenity or of
unprotected matter may vary according to the group to whom the questionable material is directed or
from whom it is quarantined from. Because of the State’s exigent interest in preventing distribution to
children of objectionable material, it can exercise its power to protect the health, safety, welfare and
morals of its community by barring the distribution to children of books recognized to be suitable for
adults.’
 Appellant contends that the constitutional freedom of expression secured to a citizen to read or
see material concerned with sex cannot be made to depend upon whether the citizen is an adult or
minor. He accordingly insists that the denial of this kind in the case at bar constitutes an
unconstitutional deprivation of protected liberty. However, the Court concludes that this statute did not
invade the area of freedom of expression constitutionally secured to minors. Rather this penal law
adjusts 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.

The well-being of the children is a subject within the State’s constitutional power to regulate.
The State also has an independent interest in the well-being of its youth. In Prince vs Massachussets, the
Court recognized that the State has an interest ‘to protect the welfare of children’ and to see that they
are ‘safeguarded from abuses’ which might prevent their ‘growth into free and independent well-
developed men and citizens’. The only question remaining is whether the New York Legislature might
rationally conclude, as it has, that exposure to such kind of materials constitutes ‘abuse’. The New York
Penal Law states that there is a legislative finding that the material condemned by the Statute is a basic
factor in impairing the ethical and moral development of the youth. It is very doubtful that this finding
expresses an accepted scientific fact but it is equally true that a causal link has not been disproved
either.

2. No it is not void for being vague because it is virtually identical to the Supreme Court’s most
recent statements of the elements of obscenity in Memoirs vs Massachussets. The definition gives ‘men
in acting adequate notice of what is prohibited’ and does not offend the requirements of due process. As
is required by Smith vs California, it prohibits only those sales made ‘knowingly’. ‘Knowingly’ includes a
‘reason to know’ or ‘a belief or ground for belief which warrants further inspection or inquiry of both:

(i) the character and content of any material described herein, and
(ii) the age of the minor, provided however,

that an honest mistake shall constitute an excuse from liability if the defendant made a reasonable bona
fide attempt to ascertain the true age of such minor.