Premature Obscenity

DON'T SEND ME TO PRISON cried the full-page ad in the New York Times, but that last desperate appeal to the U.S. Supreme Court appeared to be in vain. Ralph Ginzburg, huckster-publisher of diverse periodicals (including the defunct Eros, Avant-Garde, Fact and the current Moneysworth) is due to enter federal prison this week.

In a sense, Ginzburg was a man ahead of the legal times. Eros, his slick, expensively produced "quarterly on the joys of love," was mildly startling in the early '60s, as was its companion biweekly "newsletter of love," Liaison, and a mail-order volume called The Housewife's Handbook on Selective Promiscuity. The most controversial display in Eros, for example, was a series of color pictures of a black man and a white woman embracing in the nude. The post office, after receiving 35,000 complaints, charged Ginzburg with violating an 1872 law prohibiting the mailing of obscene material. He was convicted in 1963, and numerous appeals succeeded only in reducing his sentence from five years to three.

Still, Ginzburg hoped that the Supreme Court would let him off. In a series of cases the court had held censorship invalid under the First Amendment's guarantee of free expression. The key idea: material is not obscene unless by contemporary standards it "appealed to prurient interest" and was "utterly without redeeming social value." His publications had such value, said Ginzburg.

That did not matter, said the court.

In 1966, by a vote of 5 to 4, it upheld Ginzburg's conviction. Speaking for the court, Justice William Brennan said that Ginzburg's products should not be considered out of context; his promotional efforts showed he was pandering to prurient interests. The mailed advertisements, said Brennan, "stimulated the reader" to look "for titillation, not for saving intellectual content."

Having exhausted his appeals and stays, Ginzburg prepared for jail by telling reporters and a television audience last week that he was being made a whipping boy for an inhibited society. Of his attempt to mail his magazines from Blue Ball, Pa., and Intercourse, Pa., cited by the courts as evidence of his pandering intent, Ginzburg said, "At the worst, it was a very bad joke. But to send a man to prison for a bad joke is hardly what the founding fathers envisioned as a free and robust press." New York University Law Professor Norman Dorsen, author of several books on civil liberties, agreed: "The law has been applied unfairly to one person. Nobody, including the Supreme Court, knows what obscenity is."

The irony is that Eros and the other Ginzburg offerings of nine years ago now appear tame. Today they would be unlikely to attract either the law's wrath or the public's attention.

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