The appeal is dismissed for want of a substantial federal
question.
Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr.
Justice MARSHALL concur, dissenting.
Appellant brought this suit in the Circuit Court for Multnomah
County, Ore., seeking a declaration that Oregon Laws 1973, c. 699,
4, and Ore. Rev.Stat. 167.060(10) violate the First and Fifth
Amendments as applied to the States through the Fourteenth
Amendment, and asking that enforcement of those statutes be
enjoined. The Circuit Court dismissed appellant's complaint, and
the Court of Appeals for the State of Oregon affirmed. Or.App.,
539 P.2d
669 (1975). The Supreme Court of Oregon denied review.
Oregon Laws 1973, c. 699, 4, provides in pertinent part:
'(1) A person commits the crime of
disseminating
Page 426 U.S.
913 , 914
obscene material if he knowingly makes, exhibits, sells,
delivers or provides, or offers or agrees to make, exhibit, sell,
deliver or provide, or has in his possession with intent to
exhibit, sell, deliver or provide any obscene writing, picture,
motion picture, films, slides, drawings or other visual
reproduction.
'(2) As used in subsection (1) of
this section, matter is obscene if:
'(a) It depicts or describes in a
patently offensive manner sadomasochistic abuse or sexual
conduct;
'(b) The average person applying
contemporary state standards would find the work, taken as a whole,
appeals to the prurient interest in sex; and
'(c) Taken as a whole, it lacks a
serious literary, artistic, political or scientific value.
'. . .'
Section 167.060(10) provides:
'Sexual conduct means human
masturbation, sexual intercourse, or any touching of the genitals,
public areas or buttocks of the human male or female, or the
breasts of the female, whether alone or between members of the same
or opposite sex or between humans and animals in an act of apparent
sexual stimulation or gratification.'
It is my view that 'at least in the absence of distribution to
juveniles or obtrusive exposure of unconsenting adults, the First
and Fourteenth Amendments prohibit the State and Federal
Governments from attempting wholly to supporess sexually oriented
materials on the basis of their allegedly 'obscene' contents.'
Paris Adult Theatre I v. Slaton,
413 U.S.
49, 113 (1973) (Brennan, J., dissenting). It is clear that,
tested by that constitutional standard, Oregon Laws 1973, c. 699,
4, as it incorporates the definition of sexual conduct in
Ore.Rev.Stat. 167.060(10), is constitutionally overbroad
Page 426 U.S.
913 , 915
and therefore invalid on its face. For the reasons stated in my
dissent in Miller v. California,
413 U.S.
15, 47 (1973 ), I would therefore note probable jurisdiction
and, since the judgment of the Court of Appeals for the State of
Oregon was rendered after Miller, reverse. In that circumstance, I
have no occasion to consider whether the other question presented
by appellant merits plenary review. See Heller v. New York, 413
U.S. 494, 495 (1974) (Brennan, J., dissenting).
Finally, it does not appear from the jurisdictional statement
and response that the obscenity of the disputed materials was
adjudged by applying local community standards. Based on my dissent
in Hamling v. United States,
418 U.S.
87, 141 (1974), I believe that, consistent with the Due Process
Clause, appellant must be given an opportunity to have its case
decided on, and introduce evidence relevant to, the legal standard
upon which the state judgment has ultimately come to depend. Thus,
even on its own terms, the Court should vacate the judgment below
and remand for a determination whether appellant should be afforded
a new hearing under local community standards.
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