Sharp v. TexasSharp v. Texas
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Lead Opinion
Appeal from Ct. Crim. App. Tex. Judgment vacated аnd case remanded for further consideration in light of Miller v. California, 413 U. S. 15 (1973); Paris Adult Theatre I v. Slaton, 413 U. S. 49 (1973); Kaplan v. California, 413 U. S. 115 (1973); United States v. 12 200-Ft. Reels of Film, 413 U. S. 123 (1973); United States v. Orito, 413 U. S. 139 (1973); Heller v. New York, 413 U. S. 483 (1973); Roaden v. Kentucky, 413 U. S. 496 (1973); and Alexander v. Virginia, 413 U. S. 836 (1973).
Mr. Justice *1119Douglas, being of the view that state obscenity regulation is prohibited by the Fourteenth and First Amendments (see Paris Adult Theatre I v. Slaton, 413 U. S. 49, 70 (Douglas, J., dissenting)), would grant certiorari and reverse the judgment of conviction.
Dissenting Opinion
dissenting.
Appellant was сonvicted for exhibiting an obscene motion picture in violation of Texas Penal Code, Art. 527, § 3 (Supp. 1973), which provides:
“Every person who knowingly: sends оr causes to be sent, or brings or causes to bе brought, into this state for sale or distribution, or in this state prepares for distribution, publishes, prints, exhibits, distributes, or оffers to distribute, or has in his possession with intent to distribute or to exhibit or offer to distribute, any obscene mаtter is guilty of a misdemeanor.”
Obscenity for purposes of Art. 527 is defined in § 1:
“(A) ‘Obscene’ material means material (a) the dominant theme of whiсh, taken as a whole, appeals to a prurient interest; (b) which is patently offensive beсause it affronts contemporary community standards relating to the description or reprеsentation of sexual matters; and (c) which is utterly withоut redeeming social value.
“(B) ‘Prurient interest’ meаns a shameful or morbid interest in nudity, sex, or excretion, which goes substantially beyond customary limits of candor in description or representation of such matters. If it appears from the charаcter of the material or the circumstanсes of its dissemination that the subject matter is designed for a specially susceptible *1120audience, the appeal of the subject matter shall be judged with reference to such audience.”
It is my view that, “at least in the absence of distribution to juveniles or obtrusive exposure to uncon-senting adults, the First and Fourteenth Amendments prohibit the Stаte and Federal Governments from attempting whоlly to suppress sexually oriented materials оn the basis of their allegedly ‘obscene’ cоntents.” Paris Adult Theatre I v. Slaton, 413 U. S. 49, 113 (1973) (Brennan, J., dissenting). It is clear that, when tested by that сonstitutional standard, the word “obscene” in § 3, read as defined in § 1, renders § 3 unconstitutionally overbroad and therefore facially invalid.
For the reasons stated in my dissent in Miller v. California, 413 U. S. 15, 47 (1973), I would therefore vacate the judgment below and remand for further proceedings not inconsistent with my Paris Adult Theatre I dissent. In that сircumstance, I have no occasion to consider at this time whether, if § 1 were properly narrowed, appellant’s challenge to the constitutionality of § 9 of Art. 527, pursuant to which the subject film was seized, would merit plenary review. See Heller v. New York, 413 U. S. 483, 495 (1973) (Brennan, J., dissenting).