Rehearing Denied Feb. 18, 1975.
See 420 U.S. 939, 1151.
The stays (A-1282 and A-1283) heretofore granted on July 9,
1974, by Mr. Justice STEWART are hereby vacated.
The appeals are dismissed for want of a substantial federal
question.
Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr.
Justice MARSHALL join, dissenting.
Appellants were convicted in the Court of Common Pleas of
Hamilton County, Ohio, of possession of allegedly obscene materials
with intent to distribute the materials in violation of Ohio
Revised Code 2905.35, which provided in pertinent part at the time
of the alleged offense as follows:
'No person with knowledge of the
content and character of the obscene material or performance
involved, shall make, manufacture, write, draw, print, reproduce,
or publish any obscene material, knowing or having reasonable cause
to know that such material will be sold, distributed, circulated,
or disseminated; or sell, lend, give away, distribute, circulate,
disseminate, exhibit, or advertise any obscene material; or write,
direct, produce, present, advertise, or participate in an obscene
performance;
Page 419 U.S.
1062 , 1063
or possess or have in his control any obscene material with
intent to violate this section . . ..'
As used in 2905.35,
'(A) Any material or performance is
'obscene' if, when considered as a whole and judged with reference
to ordinary adults, any of the following apply:
'(1) Its dominant appeal is to
prurient interest;
'(2) Its dominant tendency is to
arouse lust by displaying or depicting nudity, sexual excitement,
or sexual conduct in a way which tends to represent human beings as
mere objects of sexual appetite;
'(3) Its dominant tendency is to
arouse lust by displaying or depicting bestiality or extreme or
bizarre violence, cruelty, or brutality;
'(4) It contains a series of displays
or descriptions of nudity, sexual excitement, sexual conduct,
bestiality, extreme or bizarre violence, cruelty, or brutality, or
human bodily functions of elimination, the cumulative effect of
which is a dominant tendency to appeal to prurient interest, when
the appeal to such interest is primarily for its own sake or for
commercial exploitation, rather than for a genuine scientific,
educational, sociological, moral or artistic purpose.'
2905.34.
On appeal, the Court of Appeals of Hamilton County affirmed the
convictions. The Supreme Court of Ohio dismissed the appeals.
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.'
Page 419 U.S.
1062 , 1064
Paris Adult Theatre I v. Slaton,
413 U.S.
49, 113d 446, (1973) (Brennan, J., dissenting). It is clear
that, tested by that constitutional standard, 2905.35, as it
incorporated the definition of 'obscene' of 2905.34, was
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 note probable jurisdiction
and, since the judgment of the Court of Appeals of Hamilton County
was rendered after Miller, reverse.* In that circumstance, I have
no occasion to consider whether the other questions presented in
addition to those already treated merit plenary review. See Heller
v. New York, 413 U.S. 494, 495 (1974 ) (Brennan, J.,
dissenting).
Mr. Justice DOUGLAS, being of the view that any state or federal
ban on, or regulation of, obscenity is prohibited by the
Constitution, Roth v. United States,
354 U.S. 476, 508-514
(1957); Miller v. California,
413 U.S. 15, 42-47 (
1973); Paris Adult Theatre I v. Slaton,
413 U.S. 49, 70-73 (1973),
would note probable jurisdiction and summarily reverse.
Further, it does not appear from the petition 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 (1974), I believe that, consistent with the Due Process
Clause, appellant must be given an opportunity to have his case
decided upon, and introduce evidence relevant to, the legal
standard upon which his conviction 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 trial under local community standards.
Footnotes
[
Footnote *] Although four of us
would note probable jurisdiction and reverse, the Justices who join
this opinion do not insist that the case be decided on the
merits.
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