Bryant Et Al. v. North Carolina; And Horn v. North Carolina, 419 U.S. 974

Bryant Et Al. v. North Carolina; And Horn v. North Carolina

419 U.S. 974

SCOTUS

1974

Check Treatment

BRYANT ET AL. v. NORTH CAROLINA

No. 73-1811; No. 73-1818

Supreme Court of the United States

1974

419 U.S. 974

an offense under § 7206 (1) is automatically extended and converted into a 6-year-and-9-month period, at the Government‘s option, by its mere filing of an appropriate complaint with a commissioner of the United States before the expiration of the 6-year period.

The Government, possibly, is right, but its position, under the circumstances of this case, appears to me to be not entirely consistent with what was said in the respective opinions in

Jaben by Justices Harlan and Goldberg. I therefore would grant the petition for certiorari and test the Government‘s position only upon full briefing and argument.

No. 73-1780.

DITLOW ET AL. v. BRINEGAR, SECRETARY OF TRANSPORTATION, ET AL. C. A. D. C. Cir. Motion to defer consideration and certiorari denied. MR. JUSTICE DOUGLAS would grant certiorari.

No. 73-1811.

BRYANT ET AL. v. NORTH CAROLINA; and No. 73-1818. . Sup. Ct. N. C. Certiorari denied. MR. JUSTICE DOUGLAS, being of the view that any state or federal ban on, or regulation of, obscenity is prohibited by the Constitution, ; ; , would grant certiorari and summarily reverse the judgment. Reported below: No. 73-1811, , ; No. 73-1818, , .

MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART and MR. JUSTICE MARSHALL join, dissenting.

Petitioners Bryant and Floyd were convicted in the Superior Court of Mecklenburg County of exhibiting allegedly obscene motion pictures in violation of North Carolina Gen. Stat. § 14-190.1 (Cum. Supp. 1971). Petitioner Horn was convicted in the Superior Court of New Hanover County of selling allegedly obscene magazines in violation of the same statute. Section 14-190.1 provided in pertinent part at the times of the alleged offenses as follows:

“(a) It shall be unlawful for any person, firm or corporation to intentionally disseminate obscenity in any public place. A person, firm or corporation disseminates obscenity within the meaning of this Article if he or it:

“(1) Sells . . . any obscene writing, picture, record or other representation or embodiment of the obscene; or

“(4) Exhibits . . . any obscene still or motion picture, film, filmstrip, . . . or any matter or material . . . which is a representation, embodiment, performance, or publication of the obscene.

“(b) For purposes of this Article any material is obscene if:

“(1) The dominant theme of the material taken as a whole appeals to the prurient interest in sex; and,

“(2) The material is patently offensive because it affronts contemporary national community standards relating to the description or representation of sexual matters; and,

“(3) The material is utterly without redeeming social value.”

Petitioners Bryant and Floyd appealed their convictions to the Court of Appeals of North Carolina, which affirmed. The Supreme Court of North Carolina dismissed an appeal and denied a petition for writ of certiorari. This Court then granted certiorari, vacated the judgment of the Court of Appeals, and remanded for further consideration in light of

Miller v. California, 413 U. S. 15 (1973), and companion cases. . On remand, the Court of Appeals and the Supreme Court of North Carolina both again affirmed the convictions.

Petitioner Horn‘s conviction was affirmed by the North Carolina Court of Appeals. The Supreme Court of North Carolina also affirmed, in an opinion rendered after

Miller was decided.

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 Theatre I v. Slaton, 413 U. S. 49, 113 (1973) (BRENNAN, J., dissenting). It is clear that, tested by that constitutional standard, § 14-190.1 was constitutionally overbroad and therefore invalid on its face. For the reasons stated in my dissent in , I would therefore grant certiorari and, since the judgments of the Supreme Court of North Carolina were rendered after , reverse.^* In that circumstance, I have no occasion to consider whether the other questions presented merit plenary review. See .

Further, it does not appear from the petition and response that the obscenity of the disputed materials in these cases 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 cases decided on, and to 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 judgments below and remand for a determination whether petitioners should be afforded a new trial under local community standards.

No. 73-1992.

HALL, CORRECTION COMMISSIONER v. INMATES OF THE SUFFOLK COUNTY JAIL ET AL. C. A. 1st Cir. Motion of respondents Lopez et al. for leave to proceed in forma pauperis granted. Certiorari denied.

No. 73-6443.

GREENE ET AL. v. UNITED STATES. C. A. D. C. Cir. Certiorari denied. MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, and MR. JUSTICE MARSHALL would grant certiorari.

No. 73-6629.

PRYOR v. UNITED STATES. C. A. D. C. Cir. Certiorari denied. MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, and MR. JUSTICE MARSHALL would grant certiorari.

No. 73-6936.

HELMS v. NORTH CAROLINA. Sup. Ct. N. C. Certiorari denied. MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, and MR. JUSTICE MARSHALL would grant certiorari.

No. 73-6809.

FALKNER v. BLANTON, JUDGE. C. A. 5th Cir. Motion to strike respondent‘s brief in opposi-

Notes

Although four of us would grant certiorari and reverse the judgments, the Justices who join this opinion do not insist that the cases be decided on the merits.