On petition for writ of certiorari to the Appellate Department
of the Superior Court of California for the County of Los
Angeles.
The petition for a writ of certiorari is denied.
Mr. Justice DOUGLAS, being of the view, stated in his previous
opinions2 and those of Mr. Justice Black,3
Page 423 U.S.
900 , 901
that any state or federal ban on, or regulation of, obscenity
abridges freedom of speech and of the press contrary to the First
and Fourteenth Amendments, would grant certiorari and summarily
reverse.
Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr.
Justice MARSHALL join, dissenting.
Petitioner was convicted in the Municipal Court of Los Angeles
of exhibiting allegedly obscene motion pictures in violation of
California Penal Code 311.2, which provides in pertinent part as
follows:
'Every person who knowingly . . .
exhibits to others, any obscene matter is guilty of a
misdemeanor.'
As used in 311.2,
"Obscene matter' means matter, taken
as a whole, the predominant appeal of which to the average person,
applying contemporary community standards, is to prurient interest,
i.e., shameful or morbid interest in nudity, sex or excretion; and
is matter which taken as a whole goes substantially beyond
customary limits of candor in description or representation of such
matters; and is matter which taken as a whole is utterly without
redeeming social importance.' Id., at 311(a).
On appeal, the Appellate Department of the Superior Court of
California for the County of Los Angeles affirmed the conviction.
Certification to the Court of Appeal was sought and denied.
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
Page 423 U.S.
900 , 902
Theatre I v. Slaton,
413 U.S.
49, 113 (1973 ) (Brennan, J., dissenting). It is clear that
tested by that constitutional standard, 311.2, as it incorporates
the definition of 'obscene matter' in 311, 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 Appellate Department was rendered after Miller,
reverse. [
Footnote 1] In that
circumstance, I have no occasion to consider whether the other
question presented merit plenary review. See Heller v. New York,
413 U.S. 483, at
494, 495, at 2796 (1974) (Brennan, J., dissenting).
Further, it appears from the petition and response that the
obscenity of the disputed materials was not adjudged by applying
local community standards. Based on my dissent in Hamling v. United
States,
418 U.S.
87 (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 is conviction has ultimately come to depend. Thus, even
on its own terms, the Court should vacate the judgment below and
remand for a termination whether petitioner should be afforded a
new trial under local community standards.
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); Ginzburg v. United States,
383 U.S. 463, 491-492
(1966); Roth v. United States,
354 U.S. 476, 508-514
(1957).
Footnote 3 Ginzburg v.
United States,
383 U.S.
463, 476, 16 L. Ed. 2d 31 (1966); Mishkin v. New York,
383 U.S. 502, 515-518
(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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