418 U.S. 949 | SCOTUS | 1974
Lead Opinion
Sup. Ct. Wash. Certiorari denied. Mr. Justice Douglas, being of the view that any state ban on obscenity is prohibited by the First Amendment, made applicable to the States by the Fourteenth (see Paris Adult Theatre I v. Slaton, 413 U. S. 49, 70 (1973) (Douglas, J., dissenting)), would grant certiorari and reverse the judgment.
In this case and in 13 other cases involving issues dealing with obscenity, Mr. Justice Brennan complains that by denying certiorari or dismissing an appeal, the Court has failed to pass independently on the obscenity of the materials involved. This is a task which he has insisted, see Jacobellis v. Ohio, 378 U. S. 184, 187-190 (1964), the Court must perform under the approach to obscenity which he espoused and explicated for the Court in Roth v. United States, 354 U. S. 476 (1957); which he refined for himself and others in Jacobellis v. Ohio, supra; Memoirs v. Massachusetts, 383 U. S. 413 (1966); Ginzburg v. United States, 383 U. S. 463 (1966); Mishkin v. New York, 383 U. S. 502 (1966); and Ginsberg v. New York, 390 U. S. 629 (1968); but which he has now repudiated.
In five of these cases,
In six other cases,
Finally, I join in denying petitions for certiorari in this case and two other cases, Buckley v. New York, supra, and Sians v. United States, supra. In Buckley, the materials in question have been lodged with the Court, and the issue of their obscenity is raised in the petition for certiorari. They were examined and described by the Court of Appeals for the State of New York and were held to be obscene under both Miller and pre-Miller standards. Examination of the materials has not persuaded me that certiorari should be granted. The same is true of Siam. The materials, an unremitting series of explicit photographs of a wide spectrum of sexual conduct, including homosexual acts, anal intercourse, fellatio, cunnilingus, and group orgies, were held obscene under any standard by the Court of Appeals. I would not review that judgment.
In J-R Distributors, Inc., the case in which this opinion is filed, the issue of the obscenity of the materials involved was raised in the petition for certiorari, and part, but not all, of them was lodged with this Court. I join in denying the petition for certiorari. Although some of. the materials have not been filed here and are therefore not before us, the Washington Supreme Court found all of them obscene under both Roth and Miller standards. As for the materials on file, it is sufficiently clear to me that they fall within the category of hard-core pornography unprotected by the First Amendment that plenary review is not required. One of the publications involved is Sex Between Humans and Animals. Me.
Carlson v. United States, supra; Village Books, Inc. v. Marshall, supra; Cangiano v. United States, supra; Kaplan v. United States, supra; and Watkins v. South Carolina, supra.
Brown v. United States, supra; Thevis v. United States, supra; Peachtree News Co., Inc. v. United States, supra; Enskat v. California, supra; Paris Adult Theatre I v. Slaton, supra; and Millican v. United States, supra.
Dissenting Opinion
dissenting.
Petitioners were convicted for violations of Revised Code of Washington § 9.68.010 (Supp. 1972), which provides:
“Every person who—
“(1) Having knowledge of the contents thereof shall exhibit, sell, distribute, display for sale or distribution, or having knowledge of the contents thereof shall have in his possession with the intent to sell or distribute any book, magazine, pamphlet, comic book, newspaper, writing, photograph, motion picture film, phonograph record, tape or wire recording, picture, drawing, figure, image, or any object or thing which is obscene; or
“(2) Having knowledge of the contents thereof shall cause to be performed or exhibited, or shall engage in the performance or exhibition of any show, act, play, dance or motion picture which is obscene ;
“Shall be guilty of a gross misdemeanor.
“The provisions of this section shall not apply to acts done in the scope of his employment by a motion picture operator or projectionist employed by the owner or manager of a theatre or other place for the showing of motion pictures, unless the motion picture operator or projectionist has a financial in*953 terest in such theatre or place wherein he is so employed or unless he caused to be performed or exhibited such performance or motion picture without the knowledge and consent of the manager or owner of the theatre or other place of showing.”
The Supreme Court of Washington affirmed the convictions, 82 Wash. 2d 584, 512 P. 2d 1049, and subsequently denied a petition for rehearing.
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, § 9.68.010 is constitutionally overbroad and therefore invalid on its face. 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 Washington Supreme Court was rendered after Miller, reverse.
Moreover, on the basis of the Court’s own holding in Jenkins v. Georgia, ante, p. 153, its denial of certiorari is improper. As permitted by Rule 21 (1) of the Rules of this Court, which provides that the record in a case need not be certified to this Court, certain of these petitioners did not certify the allegedly obscene materials involved
petitioners Samuel Kravitz, Albert T. Duane, and James M. Tidyman were convicted of exhibiting allegedly obscene films, none of which has been certified to this Court.
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.