Minor Obscenity

Lately, the Supreme Court has regularly been finding anti-obscenity laws unconstitutional. But it has also hinted that it would find no objection to laws specifically aimed at the protection of juveniles. Last week, by a vote of 6 to 3, the court fulfilled the hints by holding that states may make it a crime knowingly to sell "to minors under 17 years of age material defined to be obscene to them whether or not it would be obscene to adults."

Beyond Adult Scope. In 1965, a 16-year-old boy bought a few girlie magazines from Sam Ginsberg at his Bellmore, L.I., stationery store and luncheonette. Ginsberg was tried and convicted under New York's new juvenile obscenity law; he appealed. His contention was that the right of a person to read or see material "cannot be made to depend upon whether the citizen is an adult or a minor." But the contention does not wash, said Justice William Brennan, who is frequently the author of the court's opinions on obscenity.

For one thing, the court held 24 years ago in Prince v. Massachusetts, a child-labor-law case, that "the power of the state to control the conduct of children reaches beyond the scope of its authority over adults." And Brennan added last week that "the well-being of its children is of course a subject within the state's constitutional power to regulate." He also pointed out that New York's "prohibition does not bar parents who so desire from purchasing the magazines for their children." As to whether or not girlie magazines and similar material actually impair--in the words of New York's law--"the ethical and moral development of youth," Brennan concluded that scientific evidence had neither proved nor disproved that point. Since the court does not require that legislatures have "scientifically certain criteria for legislation," there are no grounds for a finding that the New York law "has no rational relation to the objective of safeguarding minors from harm."

Need for Specifics. Dissenting, Justice Abe Fortas pointed out that the boy had been directed to make the purchase by his mother in an effort to get Ginsberg convicted. "Bookselling," said Fortas, "should not be a hazardous profession." The magazines that Sam Ginsberg sold were admittedly not obscene for adults; how was he to know that they were obscene for children? The court must define "the extent to which literature or pictures may be less offensive in order to be 'obscene' for purposes of a statute confined to youth."

As Fortas indicated, the court did not say what the standards should be. But it did note that New York's standards, whether acceptable or not, were at least precisely stated. That was not so in the companion case of a Dallas ordinance that sought to bar juveniles under 16 from movies found unsuitable by a local board of censors. Speaking for an 8-to-1 majority, Justice Thurgood Marshall found that the standards to be applied under the ordinance were unconstitutionally vague. Dallas and other communities may now pattern their laws after the New York statute upheld in Ginsberg, but even that decision leaves a large question unanswered. It is now all right to ban certain materials for children, but just what those materials are remains to be spelled out.

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