Academic journal article Brigham Young University Law Review

WWW.Sam's_Stationery_and_Luncheonette.Com: Bringing Ginsberg V. New York into the Internet Age

Academic journal article Brigham Young University Law Review

WWW.Sam's_Stationery_and_Luncheonette.Com: Bringing Ginsberg V. New York into the Internet Age

Article excerpt

I. INTRODUCTION

Sam's Stationery and Luncheonette was, in 1965, a lunch counter and small store in Bellmore, Long Island, New York.1 Among the items sold were magazines, including what the U.S. Supreme Court would later call "girlie" magazines. The store was operated by Sam Ginsberg and his wife. On each of two occasions in October of that year, Sam sold two such "girlie" magazines to a sixteen-year-old boy whose mother had sent him in to make the purchase in a private sort of sting operation. The mother then reported the purchase to the police.

Ginsberg was charged and convicted under a New York statute barring "knowingly" selling to a person under seventeen material containing representations of "a person or portion of the human body which depicts nudity, sexual conduct or sado-masochistic abuse and which is harmful to minors."2 The statute defined nudity, the feature of the magazines at issue in the case, as showing the genitals, pubic area, or female breast with less than opaque covering. The statute also defined sexual and masochistic abuse. "Harmful to minors" was defined in the statute as follows:

"Harmful to minors" means that quality of any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sado-masochistic abuse, when it:

(i) predominantly appeals to 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.3 While Ginsberg could have served up to one year in prison and could have been fined up to $500, he incurred only a suspended sentence.4

When the case reached the Supreme Court as Ginsberg v. New York,5 the Court upheld the conviction, finding no violation of the First Amendment. Although it was accepted that the magazines would not be obscene for an adult audience, the materials were sold to a minor, and the Court recognized that obscenity may vary with the audience.6 Thus, where distributors pander material to children, the Court would adapt the obscenity standard to children. It was, therefore, permissible for the State to bar the distribution of the materials to children if the ban fit an adaptation of the obscenity standard then in force so as to judge prurient interest, offensiveness, and serious value with regard to minors. Under that standard, the provocatively posed nudes in the magazines could be found obscene to minors.

The Court found the statute justified by two interests. Recognizing a well-established constitutional principle that parents have the authority, within their own households, to direct the raising of their children,7 the Court said the State could conclude that parents need the support of the law in discharging their responsibilities.8 Additionally, the Court recognized that the State's independent interest in the well-being of youth justifies the limitations on the availability of sexual material.9 While science may not have proven conclusively, then or now, that sexual material harms children, the Court did not require scientific certainty and accepted as rational the belief that the material is harmful.10

Ginsberg has proven difficult to bring into the Internet age because of differences between the Internet and traditional media. An analysis of failed Internet regulation efforts and a comparison of these failed statutes to the successful New York statute in Ginsberg point to three possible constitutional applications of Ginsberg to the Internet context.

This Article proceeds by first discussing various attempts at regulation of the Internet in Part II. Part III follows with an examination of the differences among the invalidated statues and the factors that explain the disparity in treatment between the constitutional regulation of pornography distribution to a minor at a brick-and-mortar establishment in Ginsberg and the thus-far unconstitutional regulation of similar online distribution to children. …

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