LILES ET AL. v. OREGON
No. 75-983
Oregon Court of Appeals
425 U.S. 963
MR. JUSTICE STEVENS, concurring in the denial of certiorari.
The question we must first decide when acting on a рetition for certiorari is whether we should set the case for full briefing and oral argumеnt and thereafter decide the merits. Nothing in MR. JUSTICE BRENNAN‘s opinion dissenting from the denial of certiorari in this case persuades me that any purpose would be served by such argument.1 For there is no reason to believe that the
Since my dissenting Brethren have recognized the force оf this reasoning in the past,2 I believe they also could properly vote to deny сertiorari in this case without acting inconsistently with their principled views on the merits. In all events, until a valid reason for voting to grant one of these petitions is put forward, I shall continue to vote to deny. In the interest of conserving scarce law library space, I shall not repeat this explanation every time I cast such a vote.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART and MR. JUSTICE MARSHALL join, dissenting.
Petitioners were convicted of selling obscene motion picture films in viоlation of the recently enacted provisions of Oregon Laws 1973, c. 699, § 4, now codified as
“(1) A person commits the crime of disseminating obscene material if he knowingly makes, exhibits, sells, delivers or provides, or offers or agrees to make, exhibit, sell, deliver or provide, or has in his possession with intent to exhibit, sell, deliver or provide any obscene writing, picture, motion picture, films, slides, drawings or other visual reproduction.
“(2) As used in subsection (1) of this section, matter is obscene if:
“(a) It depicts or describes in a patеntly offensive manner sadomasochistic abuse or sexual conduct;
“(b) The average person applying contemporary state standards would find the work, taken as a whole, appeals to the prurient interest in sex; and
“(c) Taken as a whole, it lacks serious literary, artistic, political or scientific value.”
The judgments of cоnviction were affirmed by the Oregon Court of Appeals, 22 Ore. App. 132, 537 P. 2d 1182 (1975), and a timely petition for rеview was subsequently denied by the Oregon Supreme Court.
It is my view that “at least in the absencе of distribution to juveniles or obtrusive exposure to unconsenting adults, the First and Fourteenth Amеndments 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, Oregon Laws 1973, c. 699, § 4, is constitutionally ovеrbroad 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 therеfore grant certiorari and, since the judgment of the Oregon Court of Appeals wаs rendered after Miller, reverse. In that circumstance, I have no occasion to consider whether the other question presented by petitioners merits plenary review. See Heller v. New York, 413 U. S. 483, 495 (1973) (BRENNAN, J., dissenting).
I note that this case particularly exemplifies the difficulty and arbitrariness inherent in any attempt to articulate a standard of obscenity. I need only quotе the standard as applied by the judge before whom petitioners’ case was triеd:
“Well, what is patently offensive?
“And, frankly, I had to kind of apply my own standard, which, I believe, corresponds with the standards of the community. And the standard probably, simply stated and boiled down, is the same one that was taught to me by my mother from the day I was a small child. If there was something of which I would not want hеr to know, then don‘t do it. Pretty simple.
“Applying that standard I would think that I wouldn‘t get any quarrel out of аnyone in this room, that they wouldn‘t want their mothers sitting next to them while they looked at either оne of those movies. They are patently offensive.”
Pet. for Cert. 8-9.