On petition for writ of certiorari to the United States Court of
Appeals for the Ninth Circuit.
The petition for a writ of certiorari is denied.
Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr.
Justice MARSHALL join, dissenting.
Petitioners were convicted in the United States District Court
for the District of Oregon of use of the mails to ship obscene
materials in violation of 18 U.S.C. 1461, of interstate
transportation of obscene materials in violation of 18 U.S.C. 1462,
and of interstate transportation of obscene materials for purposes
of distribution and sale in violation of 18 U.S.C. 1465. The Court
of Appeals for the Ninth Circuit affirmed.
523
F.2d 369.
Title 18 U.S.C. 1461 provides in pertinent part:
'Every obscene, lewd, lascivious,
indecent, filthy or vile article, matter, thing, device, or
substance; . . . * * * * * 'Is declared to be nonmailable matter
and shall not be conveyed in the mails or delivered from any post
office or by any letter carrier. 'Whoever knowingly uses the mails
for the mailing . . . of anything declared by this section . . . to
be nonmailable . . . shall be fined not more than $5,000 or
imprisoned not more than five years . . ..'
Title 18 U.S.C. 1462 provides in pertinent part:
'Whoever brings into the United
States, or any place subject to the jurisdiction thereof, or
knowingly uses any express company or other com-
Page 424 U.S.
929 , 930
mon carrier, for carriage in interstate or foreign
commerce--
'(a) any obscene, lewd, lascivious,
or filthy book, pamphlet, picture, motion-picture film, paper,
letter, writing, print, or other matter of indecent character; . .
.
* * * * *
'Shall be fined not more than $5,000
or imprisoned not more than five years, or both, for the first such
offense and shall be fined not more than $10,000 or imprisoned not
more than ten years, or both, for each such offense
thereafter.'
Title 18 U.S.C. 1465 provides in pertinent part:
'Whoever knowingly transports in
interstate or foreign commerce for the purpose of sale or
distribution any obscene, lewd, lascivious, or filthy book,
pamphlet, picture, film, paper, letter, writing, print,
silhousette, drawing, figure, image, cast, phonograph recording,
electrical transcription or other article capable of producing
sound or any other matter of indecent or immoral character, shall
be fined not more than $5,000 or imprisoned not more than five
years, or both.'
I adhere to my dissent in United States v. Orito,
413 U.S.
139, 147 (1973), in which, speaking of 18 U.S.C. 1462, which is
similar in scope to 1461, 1465, I expressed the view that
'[w]hatever the extent of the Federal Government's power to bar the
distribution of allegedly obscene material to juveniles or the
offensive exposure of such material to unconsenting adults, the
statute before us is clearly overbroad and unconstitutional on its
face.' Id., at 147-148, 93 S. Ct. 2674. For the reasons stated in
my dissent in Miller v. California,
413 U.S.
15, 47 (1973), I would therefore grant certiorari, and,
Page 424 U.S.
929 , 931
since the judgment of the Court of Appeals for the Ninth Circuit
was rendered after Orito, reverse.
I also note that in Hamling v. United States,
418 U.S. 87 (1974), this
Court held that federal obscenity prosecutions did not require
proof of a uniform national standard of obscenity and that a juror
sitting on a federal obscenity case was permitted to draw on the
knowledge of the community from which he came 'in deciding what
conclusion 'the average person applying contemporary community
standards' would reach in a given case.'Id., at 105. Here, however,
the State of Oregon, at the time of petitioners' trial, had no
policy prohibiting the distribution of obscene materials, unless
minors are involved. This case, therefore, raises the important
question whether a uniform national standard should be applied in
the circumstance. Decision of that question certainly merits
plenary consideration and oral argument.
In these circumstances, I have no occasion to consider whether
the other question presented by petitioners merits plenary review.
See Heller v. New York, 413 U.S. 494, 495 (1974) ( Brennan, J.,
dissenting).
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