On petition for writ of certiorari to the United States Court of
Appeals for the District of Columbia Circuit.
The petition for a writ of certiorari is denied.
Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr.
Justice MARSHALL join, dissenting.
Petitioners were convicted in the United States District Court
for the District of Columbia of mailing
Page 422 U.S.
1022 , 1023
obscene matter in violation of 18 U.S.C. 1461, and of
transporting the matter in interstate commerce in violation of 18
U.S.C. 1462. 18 U.S.C. 1461 provides in pertinent part:
'Every obscene, lewd, lascivious,
indecent, filthy or vile article, matter, thing, device, or
substance;
'Is declared to be nonmailable matter
and shall not be conveyed in the mails or delivered from any post
office or by any letter carrier . . . .'
18 U.S.C. 1462 provides in pertinent part:
'Whoever brings into the United
States, or any place subject to the jurisdiction thereof, or
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; . .
.
* * * * *
'Shall be fined not more than $5,000
or imprisoned not more than five years, or both, for the first such
offense and shall be fined not more than $10,000 or imprisoned not
more than ten years, or both, for each such offense
thereafter.'
The Court of Appeals for the District of Columbia Circuit
affirmed the convictions.
I adhere to my dissent in United States v. Orito,
413 U.S.
139, 147, 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
Page 422 U.S.
1022 , 1024
exposure of such material to unconsenting adults, the statute
before us is clearly overbroad and unconstitutional on its face.'
Id., at 147-148, 93 S. Ct. 2674. 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 Court of Appeals for the District of Columbia
Circuit was rendered after Orito, reverse.*
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, 508-514
(1957); Miller v. California,
413 U.S. 15, 42-47 (
1973); Paris Adult Theatre I v. Slaton,
413 U.S. 49, 70-73 (1973),
would grant certiorari and summarily 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).
Finally, it does not appear 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, 41 L. Ed. 2d 590 (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 vacated 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.
Comments
Be the first to comment
Leave a Comment