In the Mishkin v. New York case of 1965, the US Supreme Court upheld a conviction against Paul Mishkin for selling obscene material in violation of state law. The court ruled that materials could be considered obscene not only if they were "hardcore pornography," but also if they appealed to a prurient interest in sex and lacked serious literary, artistic, political or scientific value. This decision expanded on previous rulings by including material specifically designed to stimulate erotic rather than emotional feelings as potentially obscene. Furthermore, it was determined that obscenity should be judged according to an average person applying contemporary community standards rather than based on individual sensitivities or tastes.

In the dissenting opinion for Mishkin v. New York, Justice Harlan argued that the majority's decision was inconsistent with previous rulings on obscenity laws and First Amendment rights. He contended that the court had previously held that material could only be deemed obscene if it was "utterly without redeeming social importance," a standard he believed wasn't met in this case. Furthermore, he criticized the majority's use of an individualized standard to determine obscenity, arguing it would lead to unpredictable and arbitrary enforcement of obscenity laws. Instead, he advocated for a more objective community-based standard as established in Roth v United States (1957). Lastly, Justice Harlan expressed concern over potential chilling effects on free speech due to fear of prosecution under overly broad or vague standards.