American Theatre Corporation v. United States, 430 U.S. 938

American Theatre Corporation v. United States

430 U.S. 938

SCOTUS

1977

Check Treatment

AMERICAN THEATRE CORP. ET AL. v. UNITED STATES

No. 75-985

Supreme Court of the United States

April 18, 1977

430 U.S. 938

No. 76-6207.

MCGHEE V. UNITED STATES. C. A. 5th Cir. Certiorari denied.

No. 76-6209.

GONZALES, AKA TORRES-GARCIA v. UNITED STATES. C. A. 9th Cir. Certiorari denied.

No. 76-6214.

ARGUMEDO-RODRIGUEZ v. UNITED STATES. C. A. 9th Cir. Certiorari denied.

No. 76-6215.

SLATER V. UNITED STATES. C. A. 1st Cir. Certiorari denied.

No. 76-6218.

GREEN v. UNITED STATES. C. A. 4th Cir. Certiorari denied.

No. 76-6219.

HEATH v. UNITED STATES. C. A. 3d Cir. Certiorari denied.

No. 76-6226.

THOMPSON V. LAFFOON ET AL. C. A. 9th Cir. Certiorari denied.

No. 76-6227.

FIELHAUER V. UNITED STATES. C. A. 6th Cir. Certiorari denied.

No. 76-6232.

BREEZE v. UNITED STATES. C. A. 9th Cir. Certiorari denied.

No. 76-6285.

LEWIS v. HENDERSON, CORRECTIONAL SUPERINTENDENT. C. A. 2d Cir. Certiorari denied.

No. 75-985.

AMERICAN THEATRE CORP. ET AL. v. UNITED STATES. C. A. 8th Cir. Certiorari 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 Nebraska of knowingly transporting by common carrier in interstate commerce two obscene films in violation of 18 U. S. C. § 1462. The Court of Appeals for the Eighth Circuit affirmed.

526 F. 2d 48.

Title 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.”

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.” . For the reasons stated in my dissent in , I would therefore grant certiorari, and, since the judgment of the Court of Appeals for the Eighth Circuit was rendered after Orito, reverse. In that circumstance, I have no occasion to consider whether the other questions presented by petitioners merit plenary review. See (BRENNAN, J., dissenting).

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, 141 (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.