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 of two separate offenses of knowingly
and unlawfully exhibiting an allegedly obscene motion
Page 436 U.S.
932 , 933
picture film under Birmingham City Ordinance No. 67-2, 3. He was
sentenced to pay a fine of $300 and perform hard labor for the city
of Birmingham for 180 days on the first conviction and to pay a
fine of $150 and perform hard labor for 90 days on the second.
Prior to each trial, petitioner moved to suppress the film involved
on the ground that the warrant for the seizure of the film was
improper in that the magistrate who issued the warrant had not
first viewed the film to ensure that there was probable cause to
believe the film was obscene. In each case the motion to suppress
was denied and these rulings were affirmed on appeal.
Birmingham City Ordinance No. 67-2, 3, under which petitioner
was convicted, provides:
"It shall be unlawful for any person to knowingly publish,
print, exhibit, distribute or have in his possession with intent to
distribute, exhibit, sell or offer for sale, in the city or the
police jurisdiction thereof, any obscene matter." Brief in
Opposition 3.
Birmingham ity Ordinance No. 74-18, which authorizes the
issuance of warrants to seize allegedly obscene material,
provides:
"Section 1. The following words and terms, shall when used in
this ordinance, have the following respective meanings:
"A. 'Obscene Motion Picture': A motion picture which to the
average person, applying contemporary community standards, the
predominant appeal of which motion picture taken as a whole is to
prurient interest, that is, a shameful or morbid interest in sexual
conduct, nudity or excretion, and depicts or describes in a
patently offensive manner sexual conduct, which motion picture
taken as a whole lacks serious literary, artistic, political or
scientific value.
* * * * *
Page 436 U.S.
932 , 934
"Section 2. Search warrants for the seizures as evidence of
motion picture films alleged to be obscene as defined herein and to
have been exhibited publicly in the City . . . in violation of
Ordinance Number 67-2 . . . may be issued by a Recorder or by a
Magistrate as hereinafter provided in this ordinance.
"Section 3. Any police officer of the City or other individual
who shall accuse any person of publicly exhibiting in the City . .
. an obscene motion picture film in violation of said Ordinance
Number 67-2 . . . may appear before a Recorder or Magistrate and
testify under oath to the facts upon which he bases such accusation
. . . .
"Section 4. If such Recorder or Magistrate determines from said
affidavit or affidavits . . . that there is probable cause to
believe such motion picture film is obscene, he shall proceed to
issue a search warrant for the seizure of said motion picture film
and a warrant for the arrest of the person or persons accused of
publicly exhibiting the same in the City . . . in violation of said
Ordinance Number 67-2 . . . ." App. to Pet. for Cert. A. 18-A.
20.
As the text of Birmingham's ordinances suggest, Birmingham has
attempted to declare obscene all material that it could
constitutionally declare obscene under this Court's guidelines in
Miller v. California,
413 U.S. 15 (1973). See
353 So. 2d 528, 533 ( Ala.Crim.App.), cert. denied, 353 So. 2d 534
(Ala.1977). Birmingham has, moreover, allowed warrants to issue for
the seizure of allegedly obscene motion pictures on a showing of
probable cause to believe a film is obscene under the Miller
standards.
In this Court and in the courts below, petitioner has contended
that Ordinance No. 74-18 is unconstitutional because it allows a
warrant to issue under the authority of a judicial officer who has
not personally seen the allegedly obscene motion picture. This
argument is not insubstantial, but I need not address it since I
continue to adhere to my view that
Page 436 U.S.
932 , 935
"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) (dissenting opinion). Under this test,
Birmingham Ordinance No. 67-2 is unconstitutionally overbroad and
invalid on its face. See Miller v. California, supra, 413 U.S. at
47 (BRENNAN, J., dissenting). Similarly, Birmingham Ordinance No.
74-18 is also invalid in that it allows the seizure of a film on a
showing that cannot, under my view of the First and Fourteenth
Amendments, constitute probable cause to believe a crime has been
committed. For these reasons, I would grant certiorari and
summarily reverse petitioner's convictions.
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