The appeal is dismissed for want of a substantial federal
question.
Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr.
Justice MARSHALL concur, dissenting.
Appellants sought in the 44th Judicial District Court of Dallas
County, Texas, to enjoin pending and future prosecutions uner
Vernon's Ann. Texas Penal Code Art. 527, 3, arising out of the
seizure of motion picture films alleged to be 'obscene matter'
within 3. All parties agree that Texas law permits equitable
intervention in a criminal proceeding if the criminal statute
involved is unconstitutional, or otherwise void, and enforcement
would result in irreparable injury to property rights. See State ex
rel. Flowers v. Woodruff, 150 Tex.Cr.R. 255, 200 S.W.2d 178 (1947
). Appellants challenged the constitutionality under the First,
Fifth, and Fourteenth Amendments of Art. 527, 9(h) of the Texas
Penal Code, enacted as an aid to the enforcement of 3, which is
Texas' basic criminal obscenity statute. Section 9(h) provides as
follows:
'In the event that a search warrant
is issued and matter alleged to be obscene is seized under the
provisions of this section, any person alleged to be in possession
of the said matter or claiming ownership of the matter at the time
of its posses-
Page 414 U.S.
951 , 952
sion or seizure may file a notice in writing with the magistrate
within 10 days of the date of the seizure alleging that the matter
is not obscene and the magistrate shall set a hearing within one
day after request therefor, or at such time as the requesting party
might agree, and at such hearing evidence may be presented as to
the obscenity of the matter seized and at the conclusion of such
additional hearing, the magistrate shall make a further
determination as to the obscenity or nonobscenity of the matter. If
at such hearing the magistrate finds the matter to be obscene, then
it shall be returned to the person or persons from whom it was
seized.'
Obscenity for purposes of Art. 527 is defined in 1:
'(A) 'Obscene' material means
material (a) the dominant theme of which, taken as a whole, appeals
to a prurient interest; (b) which is pattently offensive because it
affronts contemporary community standards relating to the
description or representation of sexual matters; and (c) which is
utterly without redeeming social value.
'(B) 'Prurient interest' means 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. If it appears from the character
of the material or the circumstances of its dissemination that the
subject matter is designed for a specially susceptible audience,
the appeal of the subject matter shall be judged with reference to
such audience.'
The 44th Judicial District Court denied appellants' request for
relief. The Texas Court of Civil Appeals affirmed, holding that the
appellants had failed to establish the unconstitutionality of 9(h).
Procaccini v. Jones, 488 S.W.2d 543 (Tex.Civ.App.
Page 414 U.S.
951 , 953
1972). The Supreme Court of Texas denied a writ of error and
overruled a subsequent motion for rehearing.
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 supress sexually oriented
materials on the basis of their allegedly 'obscene' contents.'
Paris Adult Theatre I v. Slaton,
413 U.S.
49, 113 (1973) (dissenting opinion). Since it is clear that,
when tested by that constitutional standard, the word 'obscene' in
3 and 9(h), read as defined in 1, renders 3 and 9(h)
unconstitutionally overbroad and therefore facially invalid, I
disagree with the holding that the appeal does not present a
substantial federal question, and therefore dissent from the
Court's dismissal of the appeal.
For the reasons stated in my dissent in Miller v. California,
413 U.S.
15, 47 (1973), I would therefore vacate the judgment below and
remand for further proceedings not inconsistent with my Paris Adult
dissent. In that circumstance, I have no occasion to consider at
this time whether, if 1 were properly narrowed, appellants'
challenge to the constitutionality of 9(h) would merit plenary
review. See Heller v. New York,
413 U.S.
483, 494 (1973) ( Brennan, J., dissenting).
Mr. Justice DOUGLAS, being of the view that the Fourteenth and
Firth Amendments prohibit state obscenity regulation, would vacate
the judgment below and remand for further proceedings consistent
with his dissent in Paris Adult Theatre I v. Slaton,
413 U.S.
49, 70d 446.
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