On petition for writ of certiorari to the Court of Appeals of
oregon.
The petition for a writ of certiorari is denied.
Mr. Justice STEVENS, concurring in the denial of certiorari.
The question we must first decide when acting on a petition for
certiorari is whether we should set the case for full briefing and
oral argument and thereafter decide the merits. Nothing in Mr.
Justice BRENNAN'S opinion dissenting from the denail of certiorari
in this case persuades me that any purpose would be served by such
argument. [
Footnote 1] For
there is no reason to believe that the
Page 425 U.S.
963 , 964
majority of the Court which decided Miller v. California,
413 U.S. 15, is
any less adamant than the minority. Accordingly, regardless of how
I might vote on the merits after full argument, it would be
pointless to grant certiorari in case after case of this character
only to have Miller reaffirmed time after time.
Since my dissenting Brethren have recognized the force of this
reasoning in the past,2 I believe they also could properly vote to
deny certiorari in this case without acting inconsistently with
their principled views on the merits. In all events, until a valid
reason for voting to grant one of these petitions is put forward, I
shall continue to vote to deny. In the interest of conserving
scarce law library space, I shall not repeat this explanation every
time I cast such a vote.
Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr.
Justice MARSHALL join, dissenting.
Petitioners were convicted of selling obscene motion picture
films in violation of the recently enacted and as yet uncodified
provisions of Oregon Laws 1973, c. 699, 4. Section 4 provides:
'(1) A person commits the crime of
disseminating 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:
Page 425 U.S.
963 , 965
'(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.
. . .'
The judgments of conviction were affirmed by the Oregon Court of
Appeals, 22 Or.App. 132,
537 P.2d
1182, and a timely petition for review was subsequently denied
by the Oregon Supreme Court, 543 P.2d 698.
It is my view that 'at least in the absence of distribution to
juveniles or obtrusive exposure to unconsenting adults, the First
and Fourteenth Amendments prohibit the State and Federal
Governments from attempting wholly to suppress 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, is constitutionally overbroad 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 grant certiorari and, since
the judgment of the Oregon Court of Appeals was rendered after
Miller, reverse. In that circumstance, I have no occasion to
consider whether the other question presented by petitioners merits
plenary review. See Heller v. New York,
413 U.S.
483, 495 (1974) (Brennan, J., dissenting).
I note that this case particularly exemplifies the difficulty
and arbitrariness inherent in any attempt to articulate a standard
of obscenity. I need only quote the standard as applied by the
judge to whom petitioners' case was tried:
"Well, what is patently offensive?
Page 425 U.S.
963 , 966
"And, frankly, I had to kind of apply my own standard, which, I
believe, corresponds with the standards of the community. And the
standard probably, simply stated and boiled down, is the same one
that was taught to me by my mother from the day I was a small
child. If there was something of which I would not want her to
know, then don't do it. Pretty simple.
"Applying that standard I would think
that I wouldn't get any quarrel out of anyone in this room, that
they wouldn't want their mothers sitting next to them while they
looked at either one of those movies. They are patently offensive."
Petition, at 8-9.
Footnotes
Footnote 1 His quotation of
the standard of obscenity applied by the trial judge in this case
supports the argument made in his dissent in Paris Adult Theatre I
v. Slaton,
413 U.S.
49, 73, that there has been a failure to define standards which
will give adequate guidance to the lower state and federal courts
in making obscenity determinations with any degree of predictable
consistency. I do not understand him to be using the quotation as a
separate argument for granting certiorari in this particular case
because the Oregon Court of Appeals did not consider the
constitutionality of that standard, but held instead that
petitioners had not properly preserved this claim under Oregon
law.
Footnote 2 Ratner v. United
States,
423 U.S.
898, 900 n. * (Brennan, J., dissenting); Sandquist v.
California,
423 U.S.
900, 902 n. * (Brennan, J., dissenting).
Comments
Be the first to comment
Leave a Comment