FORTAS, J., dissenting.

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Amendment areas; and it requires more indulgence than this Court has permitted in cases involving First Amendment freedoms for us to say that the State has made a tolerable showing to the contrary.

I would reverse the judgment below and remand for the entry of an appropriate order."

5 In view of the fact that the majority does not reach the issue, I consider it inappropriate to discuss whether the anti-injunction statute, 28 U. S. C. § 2283, constitutes a bar to Dombrowski relief in this case. See, however, City of Greenwood v. Peacock, 384 U. S. 808, 829 (1966).

Syllabus.

GINSBERG v. NEW YORK.

APPEAL FROM THE APPELLATE TERM OF THE SUPREME COURT OF NEW YORK, SECOND JUDICIAL DEPARTMENT.

No. 47. Argued January 16, 1968.-Decided April 22, 1968. Appellant, who operates a stationery store and luncheonette, was convicted of selling "girlie" magazines to a 16-year-old boy in violation of § 484-h of the New York Penal Law. The statute makes it unlawful "knowingly to sell . . . to a minor" under 17 "(a) any picture . . . which depicts nudity . . . and which is harmful to minors," and "(b) any . . . magazine . . . which contains [such pictures] and which, taken as a whole, is harmful to minors." Appellant's conviction was affirmed by the Appellate Term of the Supreme Court. He was denied leave to appeal to the New York Court of Appeals. Held:

1. The magazines here involved are not obscene for adults and appellant is not barred from selling them to persons 17 years of age or older. Pp. 634-635.

2. Obscenity is not within the area of protected speech or press, Roth v. United States, 354 U. S. 476, 485, and there is no issue here of the obscenity of the material involved as appellant does not argue that the magazines are not "harmful to minors." P. 635.

3. It is not constitutionally impermissible for New York, under this statute, to accord minors under 17 years of age a more restricted right than that assured to adults to judge and determine for themselves what sex material they may read and see. Pp. 637-643.

(a) The State has power to adjust the definition of obscenity as applied to minors, for even where there is an invasion of protected freedoms "the power of the state to control the conduct of children reaches beyond the scope of its authority over adults." Prince v. Massachusetts, 321 U. S. 158, 170. Pp. 638–639.

(b) Constitutional interpretation has consistently recognized that the parents' claim to authority in the rearing of their children is basic in our society, and the legislature could properly conclude that those primarily responsible for children's well-being are entitled to the support of laws designed to aid discharge of that responsibility. P. 639.

(c) The State has an independent interest in protecting the welfare of children and safeguarding them from abuses. Pp. 640-641.

(d) This Court cannot say that the statute, in defining obscenity on the basis of its appeal to minors under 17, has no rational relation to the objective of safeguarding such minors from harm. Pp. 641-643.

4. Subsections (f) and (g) of § 484-h are not void for vagueness. Pp. 643-645.

(a) The New York Court of Appeals, in Bookcase, Inc. v. Broderick, 18 N. Y. 2d 71, 76, 218 N. E. 2d 668, 671, construed the definition of obscenity "harmful to minors" in subsection (f) "as virtually identical to" this Court's most recent statement of the elements of obscenity in Memoirs v. Massachusetts, 383 U. S. 413, 418, and accordingly the definition gives adequate notice of what is prohibited and does not offend due process requirements. P. 643.

(b) Since the New York Legislature's attention was drawn to People v. Finkelstein, 9 N. Y. 2d 342, 174 N. E. 2d 470, which defined the nature of scienter for New York's general obscenity statute, when it considered § 484-h, it may be inferred that the reference in provision (i) of subsection (g) to knowledge of the "character and content" of the material incorporates the gloss given the term "character" in People v. Finkelstein. P. 644.

(c) Provision (ii) of subsection (g) states expressly that a defendant must be acquitted on the ground of "honest mistake" if he proves that he made "a reasonable bona fide attempt to ascertain the true age of such minor." P. 645. Affirmed.

Emanuel Redfield argued the cause for appellant. With him on the brief was Benjamin E. Winston. William Cahn argued the cause for appellee. With him on the brief was George Danzig Levine.

Briefs of amici curiae, urging reversal, were filed by Osmond K. Fraenkel, Edward J. Ennis, Melvin L. Wulf and Alan H. Levine for the American Civil Liberties Union et al., by Morris B. Abram and Jay Greenfield for the Council for Periodical Distributors Associations, Inc.,

629

Opinion of the Court.

by Horace S. Manges and Marshall C. Berger for the American Book Publishers Council, Inc., and by Irwin Karp for the Authors League of America, Inc.

Brief of amicus curiae, urging affirmance, was filed by Charles H. Keating, Jr., and James J. Clancy for the Citizens for Decent Literature, Inc.

MR. JUSTICE BRENNAN delivered the opinion of the Court.

This case presents the question of the constitutionality on its face of a New York criminal obscenity statute which prohibits the sale to minors under 17 years of age of material defined to be obscene on the basis of its appeal to them whether or not it would be obscene to adults.

Appellant and his wife operate "Sam's Stationery and Luncheonette" in Bellmore, Long Island. They have a lunch counter, and, among other things, also sell magazines including some so-called "girlie" magazines. Appellant was prosecuted under two informations, each in two counts, which charged that he personally sold a 16year-old boy two "girlie" magazines on each of two dates in October 1965, in violation of § 484-h of the New York Penal Law. He was tried before a judge without a jury in Nassau County District Court and was found guilty on both counts. The judge found (1) that the

1

1 Appellant makes no attack upon § 484-h as applied. We therefore have no occasion to consider the sufficiency of the evidence, or such issues as burden of proof, whether expert evidence is either required or permissible, or any other questions which might be pertinent to the application of the statute. Appellant does argue that because the trial judge included a finding that two of the magazines "contained verbal descriptions and narrative accounts of sexual excitement and sexual conduct," an offense not charged in the informations, the conviction must be set aside under Cole v. Arkansas, 333 U. S. 196. But this case was tried and the appellant

Opinion of the Court.

390 U.S.

magazines contained pictures which depicted female "nudity" in a manner defined in subsection 1 (b), that is "the showing of . . . female . . . buttocks with less than a full opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple. " and (2) that the pictures were "harmful to minors" in that they had, within the meaning of subsection 1 (f)

... 9

was found guilty only on the charges of selling magazines containing pictures depicting female nudity. It is therefore not a case where defendant was tried and convicted of a violation of one offense when he was charged with a distinctly and substantially different offense.

The full text of § 484-h is attached as Appendix A. It was enacted in L. 1965, c. 327, to replace an earlier version held invalid by the New York Court of Appeals in People v. Kahan, 15 N. Y. 2d 311, 206 N. E. 2d 333, and People v. Bookcase, Inc., 14 N. Y. 2d 409, 201 N. E. 2d 14. Section 484-h in turn was replaced by L. 1967, c. 791, now §§ 235.20-235.22 of the Penal Law. The major changes under the 1967 law added a provision that the one charged with a violation "is presumed to [sell] with knowledge of the character and content of the material sold . . .," and the provision that "it is an affirmative defense that: (a) The defendant had reasonable cause to believe that the minor involved was seventeen years old or more; and (b) Such minor exhibited to the defendant a draft card, driver's license, birth certificate or other official or apparently official document purporting to establish that such minor was seventeen years old or more." Neither addition is involved in this We intimate no view whatever upon the constitutional validity of the presumption. See in general Smith v. California, 361 U. S. 147; Speiser v. Randall, 357 U. S. 513; 41 N. Y. U. L. Rev. 791 (1966); 30 Albany L. Rev. 133 (1966).

case.

The 1967 law also repealed outright § 484-i which had been enacted one week after § 484-h. L. 1965, c. 327. It forbade sales to minors under the age of 18. The New York Court of Appeals sustained its validity against a challenge that it was void for vagueness. People v. Tannenbaum, 18 N. Y. 2d 268, 220 N. E. 2d 783. For an analysis of § 484-i and a comparison with § 484-h see 33 Brooklyn L. Rev. 329 (1967).