User:Eggishorn/sandbox/Mishkin v. New York

Mishkin v. New York, 383 U.S. 502 (1966), was a decision by the United States Supreme Court involving the application of the First Amendment to state-level obscenity laws. One of a trio of cases (with Memoirs v. Massachusetts 383 U.S. 413 (1966) and Ginzburg v. United States 383 U.S. 463 (1966)) released on the same day, Mishkin was part of the Supreme Court's attempt to refine the definitions of obscenity after the landmark 1957 case Roth v. United States 354 U.S. 476.

Obscenity law
The First Amendment puts protection for expressive content in terms that are both sweeping and absolute: "Congress shall make no law... abridging the freedom of speech, or of the press" Despite this broad protection, the roots of U.S. attempts to legally suppress obscenity extend back to the English common law offense of obscene libel and censorship of stage plays by the Master of the Revels.

American definitions of obscene material were variable and sporadic until 1879, when the test adopted in the English case Regina v. Hicklin (1868) was used in the prosecution of D. M. Bennett. This test regarded all material tending "to deprave and corrupt those whose minds are open to such immoral influences" as obscene, regardless of its artistic or literary merit. This same test was adopted by the United States Supreme Court in Rosen v. United States, 161 U.S. 29 (1896). Under this test, works such as Honoré de Balzac's Contes Drolatiques, Gustave Flaubert's Madame Bovary, James Joyce's Ulysses, and D. H. Lawrence's Lady Chatterley's Lover had all been subject to suppression under the federal Comstock Laws.

In the 1957 case Roth v. United States, 354 U.S. 476, the Supreme Court created a new, stricter definition of obscene material as media where "...to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest." This definition repudiated the former practice of finding the most shocking passages and presenting them out of context. The new definition led to much confusion, however, over what terms such as "contemporary community standards" meant in practice.

Prior history
Edward Mishkin was convicted by New York State for selling fifty pulp-quality books of sexually explicit material with titles like Mistress of Leather, The Whipping Chorus Girls, and Arduous Figure Training at Bondhaven.

Effects of the decision
Justice Hugo Black notably expressed frustration with the outcome of the three related cases: "I wish once more to express my objections to saddling this Court with the irksome and inevitably unpopular and unwholesome task of finally deciding by a case-by-case, sight-by-sight personal judgment of the members of this Court what pornography (whatever that means) is too hard core for people to see or read."