Ginzburg et. al.--An Attack on Freedom of Expression
Leslie J. Crocker · Case Western Reserve University School of Law Scholarly Commons (Case Western Reserve University) · 1966
the United States Supreme Court struck a forceful blow at the dissemination of purportedly obscene material.In Ginzburg v. United States' and Mishkin v. New York, 2 it upheld criminal convictions for the purveyance of "obscene" materials, emphasizing a new element.Intrinsically non-obscene material may now become suppressible depending on the method and manner employed in advertising it.' In A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Massachusetts, 4 although it reversed the non-criminal finding of obscenity, the Court emphasized the same new element, thus nullifying the import of its reversal.These decisions were received with surprise by many attorneys and laymen inasmuch as none of the Supreme Court's prior decisions concerning obscenity portended such an outcome.Prior decisions, perhaps most notably jacobellis v. Ohio, 5 indicated the extreme confusion of the Court in this area and the division in views among the nine Justices.But Roth v. United States' had enunciated a test which was given an increasingly more liberal interpretation in subsequent decisions.Ginzburg et.al. constitutes a dangerously regressive step.This Note will analyze the three new decisions and attempt to determine their significance.First, it will be necessary to review briefly the history of the Court's behavior in the area of obscenity.Second, a detailed commentary on the views of the different Justices in Ginzburg et.al. will be attempted.Finally, an attempt will be made to isolate and analyze the factors combining to attain such a resulta result which is a serious step backward in the evolution of freedom of expression.