In 1963 New York publisher Ralph Ginzburg was convicted of violating the Comstock Act in the U.S. District Court for the Eastern District of Pennsylvania. He was sentenced to five years in prison. The Justice Department had indicted Ginzburg at the height of the Civil Rights movement in the South. The decision to prosecute was initiated when the head of the department, Robert F. Kennedy, became incensed with Ginzburg for publishing a series of color photographs depicting, as lovers, a nude black male and nude white woman in the fourth issue of Eros magazine.

Eros, billed as the magazine of sexual candor, was first published on Saint Valentine’s Day in 1962. It was an expensive and well-designed, hardcover periodical that received, among other honors, the Art Directors Club of New York gold medal for graphic design. The magazine showcased erotic masterpieces by Edward Degas, Albrecht Durer, Rembrandt, and Pablo Picasso, as well as work by well-regarded contemporary illustrators and photographers. Eros also featured venerable erotic tales and essays, such as Guy de Maupassant’s Madame Tellier’s Brothel and Mark Twain’s 1601, alongside the work of established authors and noted sex researchers. Ginzburg was also convicted of mailing not only Eros, but also Liaison, a biweekly newsletter of sexology, and a memoir, The Housewife’s Handbook on Selective Promiscuity.

Ginzburg’s appeal to the Supreme Court was decided on March 21, 1966. Voting 5-4, the justices sustained the lower court’s conviction, even though they did not find Eros or the other publications to be obscene. Instead, while avoiding the question of whether Ginzburg’s publications were in themselves obscene, the Court ruled that Ginzburg was guilty of pandering because he had written provocative advertisements for his wares suggesting they were obscene. The Court called attention to Ginzburg’s attempts to have circulars for Eros postmarked from the Amish Pennsylvania communities of Blue Ball and Intercourse, while eventually posting the advertisements from Middlesex, New Jersey. The Roth test, the federal standard for obscenity from 1957 to 1973, was thus amended to include a pandering clause that made it illegal to advertise products in a manner designed to appeal to prurient interest.

Justice William J. Brennan, Jr., who wrote the majority opinion in the Ginzburg case, later claimed that this decision was the worst he ever made. The private papers of Justice Abe Fortas, who also voted against Ginzburg, reveal that Fortas’ personal dislike for Ginzburg lead him to vote to sustain the publisher’s conviction. In strong dissent, Justice Potter Stewart argued that sustaining Ginzburg’s conviction deprived the publisher of due process of law, as the Court had found Ginzburg guilty of committing a crime for which he was neither charged nor tried.

Ginzburg’s conviction was subsequently reduced from five years in prison to three. In 1972 he served eight months in the Lewisburg, Pennsylvania, federal penitentiary.