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21 Rutgers L. Rev. 56 (1966-1967)
The Supreme Court and Obscenity: The Ginzburg Test - Restriction of First Amendment Freedoms through Loss of Predictability

handle is hein.journals/rutlr21 and id is 62 raw text is: THE SUPREME COURT AND OBSCENITY: THE
GINZBURG TEST-RESTRICTION OF FIRST
AMENDMENT FREEDOMS THROUGH
LOSS OF PREDICTABILITY
ALAN SILBER*
Since 1957, when the Supreme Court first declared that obscenity
was not protected by the First Amendment,' the Court has painstak-
ingly searched to find a viable definition of obscenity. The original
definition was vague and the entire concept, as the Court itself pointed
out, was not easily workable. But, bit by bit, from the Roth case down
through the opinion in Jacobellis v. Ohio2 in 1964, the Court has chis-
eled and hammered out a definition of obscenity.
Predictability-ever elusive in this area-had become a possibility,
albeit a somewhat illusory one, for at least some jurists and com-
mentators. The Court had walked a tenuous line by providing much
controversial speech the full protection of the First Amendment with-
out granting complete protection to all speech dealing with sex. The
Court's aims probably have not changed but with its three most recent
decisions in the area [Ginzburg v. United States;3 Mishkin v. New
York;4 and A Book Named John Cleland's Memoirs of a Woman of
Pleasure v. Attorney General of Massachusetts5 (hereinafter, Fanny
Hill)] it seems likely that the entire framework used in dealing with
the concept of obscenity has been drastically altered. To the litigants,
the lawyers, the publishers, as well as to authors and photographers,
what was relevant and dispositive of the issue before may now be com-
pletely irrelevant or, at most, only slightly persuasive. Itv is possible,
however, that some restraint will be added to what now appears to
have been a rather sweeping change when two new obscenity cases6
are heard this term.
This article attempts to chart some of the changes effected by the
new tack and to catalogue, define, and perhaps, add to the protests.
* B.A., Duke University; LL.B., Columbia Law School; member of the New Jersey Bar.
1. Roth v. United States, 354 U.S. 476 (1957).
2. 378 U.S. 184 (1963).
3. 383 U.S. 463 (1966).
4. 383 U.S. 502 (1966).
5. 383 U.S. 413 (1966).
6. See Redrup v. New York, 384 U.S. 916 (1966) (cert. granted); Austin v. Kentucky, 384
U.S. 916 (1966) (cert. granted). Certiorari was granted in each case only on the issue of
whether proof of scienter is a constitutional requirement. For the complete text of the
questions before the Court, see note 51 infra.

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