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Written by Tom McInnis, last updated on September 19, 2023

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In Mishkin v. New York, 383 U.S. 502 (1966), the Supreme Court ruled that adult materials pandering to a deviant sexual group rather than the community at large are not protected by the First Amendment.


Mishkin said the state laws were to vague

The case came to the Court after Mishkin’s conviction on New York obscenity charges for publishing materials that were meant to appeal to the prurient interest of a clearly defined sexually deviant group. Most of the material depicted sadomasochism, fetishism, and homosexuality and featured covers with drawings of scantily clad women being whipped, beaten, tortured, or abused. Mishkin appealed, arguing that the state or federal laws were so vague that he did not know that such materials fit the definition of obscene.


Court ruled that the New York law was constitutional

As he did in the case of Ginzburg v. United States (1966), which the Court decided the same day, Justice William J. Brennan Jr. stated that the First Amendment does not protect materials that are obscene under the definition from Roth v. United States (1957). Beyond that, states are free to adopt other definitions of obscenity as long as they stay within the bounds set by the constitutional criteria of the Roth definition. New York’s obscenity law was constitutional because it defined obscenity more narrowly than had Roth.


Material designed for and primarily distributed to a deviant sexual group, rather than the public at large, is considered obscene under the federal constitutional definition if the dominant theme of the material taken as a whole appeals to the prurient interest in sex of the members of that group. Pandering to a deviant group’s sexual proclivities was seen as an attempt to appeal to their prurient interests; thus, New York’s inclusion of such materials in its definition of obscenity was acceptable under the First Amendment.


Dissenters thought First Amendment protected all ideas

Justices Hugo L. Black and William O. Douglas in separate dissents argued that the First Amendment protected all ideas.


Justice Potter Stewart dissented because he did not think this case involved hard core pornography. The standards for obscenity established in Miller v. California (1973) have since superseded those established in Roth.


This article was originally published in 2009. Tom McInnis earned a Ph.D. from the University of Missouri in Political Science in 1989.  He taught and researched at the University of Central Arkansas for 30 years before retirement.  He published two books and multiple articles in the area of civil liberties and the American legal system.


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