William J. Brennan, Jr.

“ Appellant was not prosecuted for anything he said or believed, but for what he did, for his dominant role in several enterprises engaged in producing and selling allegedly obscene books. Fifty books are involved in this case. They portray sexuality in many guises. Some depict relatively normal heterosexual relations, but more depict such deviations as sadomasochism, fetishism, and homosexuality. Many have covers with drawings of scantly clad women being whipped, beaten, tortured, or abused. ”

“ Moreover, there is no need for us to speculate as to whether this scienter requirement is also present in subdivision 2 of § 1141 (making it a crime to hire others to prepare obscene books) , for appellant's convictions for that offense involved books for the publication of which he was also convicted.↑ The first appeal in Finkelstein defining the scienter required by § 1141 was decided after this case was tried, but before the Appellate Division and Court of Appeals affirmed these convictions. ”

“ This claim is not capable in itself of being brought here by appeal, but only by a petition for a writ of certiorari under 28 U.S.C. § 1257 (3) (1964 ed.) as specifically setting up a federal constitutional right. [12] Nevertheless, since appellant challenged the constitutionality of § 1141 in this prosecution, and the New York courts sustained the statute, the case is properly here on appeal, and our unrestricted notation of probable jurisdiction justified appellant's briefing of the search and seizure issue. ”

“ No substantial claim is made that the books depicting sexually deviant practices are devoid of prurient appeal to sexually deviant groups. The evidence fully establishes that these books were specifically conceived and marketed for such groups. Appellant instructed his authors and artists to prepare the books expressly to induce their purchase by persons who would probably be sexually stimulated by them. It was for this reason that appellant 'wanted an emphasis on beatings and fetishism and clothing-irregular clothing, and that sort of thing, and again sex scenes between women ”

“ The far-reaching and important questions tendered by this claim are not presented by the record with sufficient clarity to require or justify their decision. Appellant's standing to assert the claim in regard to all the seizures is not entirely clear; there is no finding on the extent or nature of his interest in two book stores, the Main Stem Book Shop and Midget Book Shop, in which some of the books were seized. The State seeks to justify the basement storeroom seizure, in part, n the basis of the consent of the printer-accomplice ”

“ He was sentenced to prison terms aggregating three years and ordered to pay $12,000 in fines for these crimes. [3] The Appellate Division, First Department, affirmed those convictions. 17 A.D.2d 243, 234 N.Y.S.2d 342 (1962) . The Court of Appeals affirmed without opinion. 15 N.Y.2d 671, 255 N.Y.S.2d 881, 204 N.E.2d 209 (1964) , remittitur amended, 15 N.Y.2d 724, 256 N.Y.S.2d 936, 205 N.E.2d 201 (1965) . We noted probable jurisdiction. 380 U.S. 960, 85 S.Ct. 1103, 14 L.Ed.2d 15i. We affirm. ”