Rehearing Denied Jan. 13, 1975.
See 419 U.S. 1116.
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.
Page 419 U.S.
1004 , 1005
Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr.
Justice MARSHALL join, dissenting.
Petitioners were convicted in United States District Court for
the Eastern District of Louisiana of receiving allegedly obscene
material which had been shipped by common carrier in interstate
commerce in violation of 18 U.S.C. 1462, which provides in
pertinent part:
'Whoever . . . knowingly uses any
express company or other common carrier, for carriage in interstate
or foreign commerce--
'(a) any obscene, lewd, lascivious,
or filthy book, pamphlet, picture, motion-picture film, paper,
letter, writing, print, or other matter of indecent character;
or
* * * * *
'Whoever knowingly takes from such
express company or other common carrier any matter or thing the
carriage of which is herein made unlawful--
'Shall be fined not more than $5,000
or imprisoned not more than five years, or both . . ..'
The Court of Appeals for the Fifth Circuit affirmed,
490 F.2d
76 (CA5 1974).
I adhere to my dissent in United States v. Orito,
413 U.S.
139, 147 (1973), in which, speaking of 18 U.S.C. 1462, I
expressed the view that '[w]hatever the extent of the Federal
Government's power to bar the distribution of allegedly obscene
material to juveniles or the offensive exposure of such material to
unconsenting adults, the statute before us is clearly overbroad and
unconstitutional on its face.' Id., at 147-148. For the
Page 419 U.S.
1004 , 1006
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 Court of Appeals for the Fifth Circuit was
rendered after Orito, 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 ( 1973) (Brennan, J., dissenting).
Mr. Justice DOUGLAS, being of the view that any state or federal
ban on, or regulation of, obscenity is prohibited by the
Constitution, Roth v. United States,
354 U.S.
476, 508; Miller v. California,
413 U.S. 15, 43-48; Paris
Aduit Theatre I v. Slaton,
413 U.S. 49, 70-73, would
grant certiorari and summarily reverse.
Finally, it does not appear from the petition and response 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 (1974), I believe that, consistent with the Due Process
Clause, petitioners must be given an opportunity to have their case
decided on, and introduce evidence relevant to, the legal standard
upon which their convictions have ultimately come to depend. Thus,
even on its own terms, the Court should vacate the judgment below
and remand for a determination whether petitioners 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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