In Ginsberg v. New York, 390 U.S. 629 (1968), the Supreme Court upheld a harmful to minors, or “obscene as to minors,” law, affirming the illegality of giving persons under 17 years of age access to expressions or depictions of nudity and sexual content for “monetary consideration.”

Ginsberg convicted for illegally selling content "harmful to minors"

Judge Fuld of the Nassau County District Court had convicted Sam Ginsberg, who owned a small convenience store in Long Island, New York, where he sold “adult magazines” and was accused of selling them to a 16-year-old boy on two occasions.

New York Penal Law 484-h prohibited selling “knowingly . . . any picture . . . which depicts nudity . . . and which is harmful to minors” to persons under the age of 17. The judge found that the pictures in the magazines met the depiction of nudity established as harmful to minors in Bookcase, Inc. v. Broderick (N.Y. 1966).

Ginsberg was also held accountable for the fact that he was aware of the boy’s age and of the magazines’ nudity and alleged obscene content and potential harmfulness. Although Ginsberg claimed that the state of New York did not have the power to limit the freedom of speech and press, he did not deny the harmfulness of obscenity to minors or the ability of the state to draw the line at 17.

Ginsberg argued that the state did not have power to limit freedom of speech 

Ginsberg referred to several successful First Amendment challenges that had overturned a statute arguing that it violated freedom of speech. 

These cases did not, however, persuade the Court.

Court countered with cases that supported obscenity laws

Justice William J. Brennan Jr. countered with a number of cases that supported obscenity laws. These included these landmark decisions:

Ginsberg’s impact is reflected in that nearly every state continues to have some form of harmful to minors law on its books.

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