Leave to File Petition for Rehearing Denied Oct. 15, 1974.
See 419 U.S. 887.
On petition for writ of certiorari to the Supreme Court of
Georgia.
The petition for a writ of certiorari is denied.
Mr. Justice DOUGLAS, being of the view that any state ban on
obscenity is prohibited by the First Amendment, made applicable to
the States by the Fourteenth (see Paris Adult Theatre I v. Slaton,
413 U.S. 49, 70-73
(1973) (Douglas, J., dissenting)), would grant certi-
Page 418 U.S.
939 , 940
orari and reverse the judgment below.
Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr.
Justice MARSHALL join, dissenting.
Respondents, the local state district attorney and solicitor for
the local state trial court, filed civil complaints seeking to
enjoin petitioners, Atlanta, Georgia movie theatres and their
owners and managers, from exhibiting two allegedly obscene films,
in violation of Georgia Code Ann. 26-2101. That section provides,
in relevant part:
'(a) A person commits the offense of
distributing obscene materials when he sells, lends, rents, leases,
gives, advertises, publishes, exhibits or otherwise disseminates to
any person any obscene material of any description, knowing the
obscene nature thereof, or who offers to do so, or who possesses
such material with the intent so to do . . . .
'(b) Material is obscene if
considered as a whole, applying community standards, its
predominant appeal is to prurient interest, that is, a shameful or
morbid interest in nudity, sex or excretion, and utterly without
redeeming social value and if, in addition, it goes substantially
beyond customary limits of candor in describing or representing
such matters. . . .
* * * * *
'(d) A person convicted of
distributing obscene material shall for the first offense be
punished as for a misdemeanor, and for any subsequent offense shall
be punished by imprisonment for not less than one nor more than
five years, or by a fine not to exceed $5,000, or both.'
The trial judge dismissed respondents' complaints, but the
Georgia Supreme Court reversed. 228 Ga. 343, 185
Page 418 U.S.
939 , 941
S.E.3d 768 (1971). This Court vacated the State Supreme Court's
judgment and remanded the case for further proceedings.
413 U.S. 49 (1973). On
remand, the Georgia Supreme Court affirmed its original decision
reversing the trial court and directing the trial court to enter an
order enjoining the exhibition of the films.
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, 26-2101 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 Georgia Supreme Court was rendered after
Miller, reverse.'* In that circumstance, I have no occasion to
consider whether the other questions presented merit plenary
review. See Heller v. New York,
413 U.S. 483, 494, 495
(1973) (Brennan, J., dissenting).
Moreover, on the basis of the Court's own holding in Jenkins v.
Georgia,
418 U.S.
153 (1974), its denial of certiorari is improper. As permitted
by Supreme Court Rule 21(1), which provides that the record in a
case need not be certified to this Court, the petitioners did not
certify the allegedly obscene materials involved in this case. It
is plain, therefore, that the Court, which has not requested the
certification of those materials, has failed to discharge its
admitted responsibility under Jenkins independently to review those
materials under the second and third parts of the Miller obscenity
test.
Page 418 U.S.
939 , 942
Petitioners have thus not been provided the independent judicial
review to which the Court held them entitled in Jenkins.
Finally, it does not appear from the petition 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, 2919 (1974), I believe that, consistent with the Due
Process Clause, petitioner must be given an opportunity to have his
case decided on, and introduce evidence relevant to, the legal
standard upon which the injunction has ultimately come to depend.
Thus, even on its own terms, the Court should vacate the judgment
below and remand for a determination whether petitioner should be
afforded a new trial under local community standards.
Footnotes
[
Footnote *] 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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