William J. Brennan, Jr.

“ Rather, his contention is the broad proposition that the scope of the constitutional freedom of expression secured to a citizen to read or see material concerned with sex cannot be made to depend upon whether the citizen is an adult or a minor. He accordingly insists that the denial to minors under 17 of access to material condemned by § 484-h, insofar as that material is not obscene for persons 17 years of age or older, constitutes an unconstitutional deprivation of protected liberty. ”

“ It shall be unlawful for any person knowingly to exhibit for a monetary consideration to a minor or knowingly to sell to a minor an admission ticket or pass or knowingly to admit a minor for a monetary consideration to premises whereon there is exhibited, a motion picture, show or other presentation which, in whole or in part, depicts nudity, sexual conduct or sado-masochistic abuse and which is harmful to minors. ”

“ 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. ”

“ Exposing minors to harmful materials
(a) 'Minor' means any person under the age of seventeen years.
(b) 'Nudity' means the showing of the human male or female genitals, pubic area or 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, or the depiction of covered male genitals in a discernibly turgid state. ”

“ To openly permit implies parental approval and even suggests seductive encouragement. If this is so of parental approval, it is equally so of societal approval another potent influence on the developing ego.' Id., at 594. ”

“ The concept of variable obscenity is developed in Lockhart & McClure, Censorship of Obscenity: The Developing Constitutional Standards, 45 Minn.L.Rev. 5 (1960) . At 85 the authors state:↑ Suggestions that legislatures might give attention to laws dealing specifically with safeguarding children against pornographic material have been made by many judges and commentators. ”

“ As to (i) , § 484-h was passed after the New York Court of Appeals decided People v. Finkelstein, 9 N.Y.2d 342, 214 N.Y.S.2d 363, 174 N.E.2d 470, which read the requirement of scienter into New York's general obscenity statute, § 1141 of the Penal Law. The constitutional requirement of scienter, in the sense of knowledge of the contents of material, rests on the necessity 'to avoid the hazard of self-censorship of constitutionally protected material and to compensate for the ambiguities inherent in the definition of obscenity,' Mishkin v. ”

“ Broderick, supra, 18 N.Y.2d, at 76, 271 N.Y.S.2d, at 953, 218 N.E.2d, at 672. The definition therefore gives 'men in acting adequate notice of what is prohibited' and does not offend the requirements of due process. ”

“ Magrath, supra, at 52.↑ Our conclusion in Roth, 354 U.S., at 486-487, 77 S.Ct., that the clear and present danger test was irrelevant to the determination of obscenity made it unnecessary in that case to consider the debate among the authorities whether exposure to pornography caused antisocial consequences. ”

“ The 'girlie' picture magazines involved in the sales here are not obscene for adults, Redrup v. State of New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.2d.2d 515. [3] But § 484-h does not bar the appellant from stocking the magazines and selling them to persons 17 years of age or older, and therefore the conviction is not invalid under our decision in Butler v. State of Michigan, 352 U.S. 380, 77 S.Ct. 524, 1 L.Ed.2d 412.
Obscenity is not within the area of protected speech or press. Roth v. ”