In a legal context, pandering occurs when distributors or booksellers merchandise works in salacious terms, appealing purely to the potential purchaser’s “prurient interests.” It became a constitutional issue because of federal laws banning the use of the U.S. postal service to mail obscene, lewd, and lascivious materials as well as illegal narcotics and abortion devices.

Court addressed pandering in Ginzburg

The Supreme Court addressed the issue of pandering in the obscenity context in Ginzburg v. United States (1966). Ralph Ginzburg was convicted of violating federal law by mailing obscene materials through the U.S. Postal Service. In promoting his materials, Ginzburg sought to mail them through the postmasters of Intercourse and Blue Ball, Pennsylvania; and Middlesex, New Jersey. The trial court held that these communities were selected to promote the magazine EROS because their names would appear on the postmark and would aid in emphasizing the salacious nature of the publication. In addition, the promotional literature included with the mailing stressed the sexual content of the material and was sexually graphic.

Court said way materials were pandered could determine if they were obscene

Justice William Brennan Jr., writing for the majority of the Supreme Court, upheld the conviction by asserting that the way in which the magazine and materials had been pandered could be used to determine whether the materials were obscene. Relying on Roth v. United States (1957), which established that obscenity was not protected expression and that Roth’s conviction was justified under U.S. Code 18, section 1461, Brennan refined Roth’s prurient interest test.

He defined pandering as the “commercial exploitation of erotica solely for the sake of their prurient appeal.” Thus, if the purveyors of erotica openly advertised to appeal primarily to a customer’s erotic interests, the advertisements could be used to support a finding that the materials are obscene.

At the same time, if the distributors had advertised EROS as appealing primarily to artistic values, the Court would not be bound by the contents of the promotional literature alone and would have to rule that the work was not obscene.

What constitutes pandering remains controversial

The Ginzburg ruling did not add anything new to the definition of obscenity. Instead, it applied a portion of the definition of obscenity — that being “prurient interest” — to enforce federal obscenity laws against pandering and to clarify how communities could justify declaring materials obscene that involved pandering.

What constitutes pandering and a violation of anti-obscenity laws remains controversial. Critics of the Ginzburg ruling argue that it is impossible to prove pandering because prosecutors cannot establish that distributors had intent or knowledge that the works being marketed were obscene. In contrast, supporters of the Ginzburg ruling respond that the indiscriminate distribution and marketing of obscene materials will erode public morality, and pandering is an important element when determining whether material promoted through the mail is obscene.

This article was originally published in 2009. Ruth Ann Strickland was a professor at Appalachian State University.

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