On petition for writ of certiorari to the Court of Criminal
Appeals of Alabama.
The petition for a writ of certiorari is denied.
Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr.
Justice MARSHALL join, dissenting.
Petitioner was convicted in the Circuit Court for Montgomery
County, Ala., of violating Ala.Code Tit. 14, 374(4) (Supp. 1973).
That law provides in pertinent part:
'(1) Every person who, with knowledge
of its contents, . . . has in his possession with intent to sell or
commercially distribute, or to give away or offer to give away, any
obscene printed or written matter or material . . . shall be guilty
of a misdemeanor and, upon conviction, shall be imprisoned in the
county jail, or sentenced to hard labor for the county, for not
more than one year, and may be fined not more than two thousand
dollars for each offense, or be both so imprisoned and fined in the
discretion of the court.
'(2) Every person who, with knowledge
of its contents, has in his possession any obscene printed or
written matter or material . . . shall be guilty of a misdemeanor
and, upon conviction, shall be imprisoned in the county jail, or
sentenced to hard labor for the county, for not more than six
months,
Page 425 U.S.
982 , 983
or may be fined not more than five thousand dollars for each
offense, or be both so imprisoned and fined in the discretion of
the court.'
Under 374(3):
"Obscene' means lewd, lascivious,
filthy and pornographic and that to the average person, applying
contemporary community standards, its dominant theme taken as a
whole appeals to prurient interest.'
The indictment filed against petitioner charged him with three
counts of violating 374. The first count charged petitioner with
selling a magazine primarily containing photographs of nude women.
Genitals were exposed in some of the photographs. Count Two of the
indictment charged petitioner with selling an unillustrated short
novel containing descriptions of sexual acts. The third count of
the indictment charged the sale of another unillustrated short
novel also containing descriptions of sexual acts.
Upon inquiry to the trial court, petitioner's jury was
instructed that it could 'return a verdict as to either one of the
counts in the indictment.' Record, at 100. The jury subsequently
returned the general verdict 'We the jury find the defendant
guilty.' Record, at 102. Petitioner was adjudged guilty by the
trial court and ultimately sentenced to six months of imprisonment
and assessed a fine of $500. The judgment and sentence was affirmed
by the Alabama Court of Criminal Appeals. Matheny v. State, 55
Ala.App. 119,
313 So. 2d 547 (1975). A petition for writ of certiorari was
denied by the Alabama Supreme Court. Matheny v. State, 294 Ala.
765, 313 So. 2d 552 (1975).
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 suppress sexually oriented
materials on the
Page 425 U.S.
982 , 984
basis of their allegedly 'obscene' contents.' Paris Adult
Theatre I v. Slaton,
413 U.S.
49, 113 (1976) (Brennan, J ., dissenting). It is clear that,
tested by that constitutional standard, 374(4), as it incorporates
the definition of obscene material in 374(3), 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 Alabama Court of Criminal Appeals was rendered
after Miller, reverse, petitioner's conviction being invalid on all
counts. In that circumstance, I have no occasion to consider
whether the question of vagueness presented by petitioner merits
plenary review. See Heller v. New York, 413 U.S. 494, 495 (1974)
(Brennan, J., dissenting).
Even accepting the Court's decision in Miller v. California,
supra, and the obscenity standards there set forth, petitioner's
conviction should be set aside. It is this Court's duty
independently to review the fact of obscenity necessary to
petitioner's conviction. See Jenkins v. Georgia,
418 U.S. 153 (1974).
Under Miller, a work may not be obscene unless it 'depicts . . .,
in a patently offensive way, sexual conduct.' 413 U.S., at 24.
While exhibition of the genitals may constitute sexual conduct,
id., at 25, 93 S. Ct. 2607, such exhibition must be patently
offensive and lewd, ibid. '[N] udity alone is not enough to make
material legally obscene under the Miller standards.' Jenkins v.
Georgia, supra, 418 U.S. at 161. Tested by those standards, the
material involved in Count One, merely containing photographs of
nude women, is clearly not obscene. This being so, a conviction of
petitioner based only on Count One of the indictment cannot stand.
Because of the general nature of the jury's verdict, in the light
of the trial court's instruction to the jury, it is entirely
possible that petitioner's conviction did indeed rest solely on the
first
Page 425 U.S.
982 , 985
count. In accordance with the Court's decision in Bachellar v.
Maryland,
397 U.S.
564 (1970), therefore, petitioner's conviction should be set
aside.
Mr. Justice STEVENS took no part in the consideration or
decision of this petition.
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