Cangiano v. United States, 419 U.S. 904

Cangiano v. United States

419 U.S. 904

SCOTUS

1974

Check Treatment

CANGIANO v. UNITED STATES

No. 73-1526

C. A. 2d Cir.

413 U. S. 483, 494

Heller v. New York, 413 U. S. 483, 494 (1973) (BRENNAN, J., dissenting).

Finally, it does not appear from the petition and response that the obscenity of the disputed material 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, petitioner must be given an opportunity to have his case decided on, and to introduce evidence relevant to, the legal standard upon which his conviction has ultimately come to depend. Thus, even on its own terms, the Court should vacate the judgment below and remand for a determination whether petitioner should be afforded a new trial under local community standards.

No. 73-1526.

CANGIANO v. UNITED STATES. C. A. 2d Cir. 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, (DOUGLAS, J., dissenting); (DOUGLAS, J., dissenting), would grant certiorari in this case and summarily reverse the judgment.

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

Petitioner was convicted in the United States District Court for the Eastern District of New York of transporting allegedly obscene materials in interstate commerce for the purpose of sale in violation of 18 U. S. C. § 1465, which provides in pertinent part as follows:

“Whoever knowingly transports in interstate or foreign commerce for the purpose of sale or distribution any obscene, lewd, lascivious, or filthy book, pamphlet, picture, film, paper, letter, writing, print, silhouette, drawing, figure, image, cast, phonograph recording, electrical transcription or other article capable of producing sound or any other matter of indecent or immoral character, shall be fined not more than $5,000 or imprisoned not more than five years, or both.”

The Court of Appeals for the Second Circuit affirmed,

491 F. 2d 906 (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, which is similar in scope to § 1465, 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 Second Circuit was rendered after Orito, reverse.^* In that circumstance, I have no occasion to consider whether the other questions presented 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, petitioner must be given an opportunity to have his case decided on, and to introduce evidence relevant to, the legal standard upon which his con-viction has ultimately come to depend. Thus, even on its own terms, the Court should vacate the judgment below and remand for a determination whether petitioner should be afforded a new trial under local community standards.

WINSLOW v. VIRGINIA

No. 73-1548

Sup. Ct. Va.

No. 73-1548.

WINSLOW v. VIRGINIA. Sup. Ct. Va. 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, (DOUGLAS, J., dissenting); (DOUGLAS, J., dissenting), would grant certiorari in this case and summarily reverse the judgment.

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

Petitioner was convicted in the Corporation Court of the city of Norfolk, Virginia, of selling and distributing an allegedly obscene movie and an allegedly obscene magazine. The statute under which he was convicted, Va. Code Ann. § 18.1-228 (Supp. 1973), provides in pertinent part:

“Every person who knowingly... [p]ublishes, sells, rents, lends, transports in intrastate commerce, or distributes or exhibits any obscene item... shall be guilty of a misdemeanor.”

As used in that section:

“The word ‘obscene’ ... shall mean that which considered as a whole has as its dominant theme or purpose an appeal to prurient interest, that is, a shameful or morbid interest in nudity, sex or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters.” § 18.1-227 (1960).

The Supreme Court of Virginia affirmed by order on

Notes

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