Ginsberg v. New York/Concurrence Stewart

by Potter Stewart

United States Supreme Court

390 U.S. 629

Ginsberg  v.  New York

 Argued: Jan. 16, 1968. --- Decided: April 22, 1968

Mr. Justice STEWART, concurring in the result.

A doctrinaire, knee-jerk application of the First Amendment would, of course, dictate the nullification of this New York statute. ^[1] But that result is not required, I think, if we bear in mind what it is that the First Amendment protects.

The First Amendment guarantees liberty of human expression in order to preserve in our Nation what Mr. Justice Holmes called a 'free trade in ideas.' ^[2] To that end, the Constitution protects more than just a man's freedom to say or write or publish what he wants. It secures as well the liberty of each man to decide for himself what he will read and to what he will listen. The Constitution guarantees, in short, a society of free choice. Such a society presupposes the capacity of its members to choose.

When expression occurs in a setting where the capacity to make a choice is absent, government regulation of that expression may co-exist with and even implement First Amendment guarantees. So it was that this Court sustained a city ordinance prohibiting people from imposing their opinions on others 'by way of sound trucks with loud and raucous noises on city streets.' ^[3] And so it was that my Brothers BLACK and DOUGLAS thought that the First Amendment itself prohibits a person from foisting his uninvited views upon the members of a captive audience. ^[4]

I think a State may permissibly determine that, at least in some precisely delineated areas, a child ^[5]-like someone in a captive audience-is not possessed of that full capacity for individual choice which is the presupposition of First Amendment guarantees. It is only upon such a premise, I should suppose, that a State may deprive children of other rights the right to marry, for example, or the right to vote-deprivations that would be constitutionally intolerable for adults. ^[6]

I cannot hold that this state law, on its face, ^[7] violates the First and Fourteenth Amendments.

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.

Notes

1. The First Amendment is made applicable to the States through the Fourteenth Amendment. Stromberg v. People of State of California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117.
2. Abrams v. United States, 250 U.S. 616, 630, 40 S.Ct. 17, 22, 63 L.Ed. 1173 (dissenting opinion).
3. Kovacs v. Cooper, 336 U.S. 77, 86, 69 S.Ct. 448, 453, 93 L.Ed. 513.
4. Public Utilities Comm'n of District of Columbia v. Pollak, 343 U.S. 451, 466, 72 S.Ct. 813, 822, 96 L.Ed. 1068 (dissenting opinion of MR. JUSTICE BLACK), 467, 72 S.Ct. 823 (dissenting opinion of MR. JUSTICE DOUGLAS).
5. The appellant does not challenge New York's power to draw the line at age 17, and I intimate no view upon that question.
6. Compare Loving v. Commonwealth of Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010; Carrington v. Rash, 380 U.S. 89, 96, 85 S.Ct. 775, 780, 13 L.Ed.2d 675.
7. As the Court notes, the appellant makes no argument that the material in this case was not 'harmful to minors' within the statutory definition, or that the statute was unconstitutionally applied.