On petition for writ of certiorari to the United States Court of
Appeals for the Fifth Circuit.
The petition for a writ of certiorari is denied.
Mr. Justice DOUGLAS, being of the view, stated in previous
opinions by himself2 and by
Page 423 U.S.
960 , 961
Mr. Justice BLACK,3 that any state ban on, or regulation of,
obscenity abridges freedom of speech and of the press contrary to
the First Amendment, would grant certiorari and summarily
reverse.
Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr.
Justice MARSHALL concur, dissenting.
Petitioner was convicted in the Circuit Court of Jefferson
County, Ala., of violating the obscenity ordinance of the city of
Birmingham. Birmingham Ordinance No. 67-2, 3, provides in pertinent
part:
'It shall be unlawful for any person
to knowingly . . . exhibit, distribute or have in his possession
with intent to distribute, exhibit, sell or offer for sale . . .
any obscene matter.'
As used in Ordinance No. 67-2, 'obscene' meant at the time of
the alleged offenses:
'that to the average person, applying
contemporary standards, the predominant appeal of the matter, taken
as a whole, is to prurient interest, i. e., a shameful or morbid
interest in nudity, sex or excretion, which goes substantially
beyond customary limits of candor in description or representation
of such matters.' Id., 1.
On direct appeal, the Alabama Court of Criminal Appeals
dismissed when petitioner's appellate brief was untimely filed.
Petitions for writs of certiorari were filed with the Supreme Court
of Alabama and denied. A petition for a writ of certiorari was
filed with this Court and denied for the reason that the judgment
below rested upon an adequate state ground.
Page 423 U.S.
960 , 962
409 U.S. 895 (1972). Thereafter, a petition for habeas corpus
relief was filed in the United States District Court for the
Northern District of Alabama. Habeas relief was ultimately denied,
and on appeal the Fifth Circuit affirmed.
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, Jr., dissenting). It is clear that,
tested by that constitutional standard, Ordinance No. 67-2 as it
existed at the time of the alleged offense 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 grant certiorari, vacate the
judgment, and remand the case for further proceedings not
inconsistent with may dissent in Paris Adult Theatre I, supra. See
Wasserman v. Municipal Court of Alhambra Judicial District, 413
U.S. 911 (1973) (Brennan, J., dissenting).1 In that circumstance, I
have no occasion to consider whether the other questions presented
in this case merit plenary review. See Heller v. New York, 413 U.S.
494, 495, 2796, 756 (1973) (Brennan, J., dissenting).
Footnotes
Footnote 2 Miller v.
California,
413 U.S.
15, 42-47d 419 (1973); Paris Adult Theatre I v. Slaton,
413 U.S. 49,
70-73, 93 S. Ct. 2628 (1973); Memoirs v. Massachusetts,
383 U.S. 413, 426-433
(1966).
Footnote 3 Mishkin v. New
York,
383 U.S.
502, 515-518d 56 (1966).
Footnote 1 Although four of
us would grant and reverse, the Justices who join this opinion do
not insist that the case be decided on the merits.
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