Ginzburg v. United States: "Pandering" = Pornography
- In 1965 decision, court ruled that salacious advertisements for erotic materials could be regulated as appealing to prurient interests
- Seemed to indicate a more conservative turn in Supreme Court obscenity cases
But while the Court took a fairly tolerant and expansive view of obscenity in these cases, it adopted a different stance in Ginzburg v. United States (1965). Ralph Ginzburg was arrested for pandering—that is, advertising erotic materials, including The Housewife's Handbook on Selective Promiscuity—through the mail using suggestive language. The question before the Court was whether this too fell outside the protection of the First Amendment. Even though the advertisements themselves may not meet the standard of obscenity established in Roth, could they be banned because they pandered—that is, they attempted to exploit the prurient instincts of the average person?
The Court said yes. Even though the advertisements themselves were not pornographic per se—that is, they contained no depictions of sex and they used no obscene words—they could be legitimately evaluated by the court "against a background of commercial exploitation of erotica solely for the sake of their prurient appeal." In other words, within this broader context, the advertisement took on an obscene character, because, like pornographic materials per se, they highlighted "the sexually provocative aspects" of the material for sale "in order to catch the salaciously disposed."57
Not every justice agreed with the conservative drift in the Court suggested by this decision. Justice William Douglas had earlier dissented in Roth. He argued that the public was as capable of selecting its own literature as it was its own religion and politics. He now argued that the Ginzburg decision was even more absurd. Even the advertisements within "our best magazines are chock full of thighs, calves, ankles, bosoms, eyes and hair to draw the potential buyers." Were these also guilty of pandering? Again, he suggested that the public was "mature enough" to pick its magazines and recognize trash without the assistance of the government.58
Despite Douglas's objections, in the years after Ginzburg the proliferation of materials considered pornographic—especially film—led the court to consider expanding the range of materials subject to government restriction. In 1971, it invited arguments on the legitimacy of local restriction against adult films. The result was a series of cases culminating in Miller v. California, in which the Court, after much deliberation and hours in the film room, unveiled a revised definition of pornography.