Borges v. McGuire

Kupferman, J. P.

(dissenting). At first blush, one would say what difference does nudity make? After all, there is plenty of it at the beach, certainly in motion pictures, and a great deal comes into the home on television. However, when one examines the photographs, as included in the various publications, it becomes clear that the determination should be confirmed.

One does not have to be a Potter Stewart (see, Mr. Justice Stewart concurring in Jacobellis v Ohio, 378 US 184, 197), to know pornography when you see it. Nudity is only the tip of the iceberg. This is genitals, explicit, kinky and…