The judgment of the Supreme Court of Virginia, affirming the trial court's order adjudging certain magazines obscene and restraining their sale, is vacated and remanded for further proceedings consistent with Miller v. California, ante, p. 15; Paris Adult Theatre I v. Slaton, ante, p. 49; and Heller v. New York, ante, p. 483. Trial by jury is not constitutionally required in this civil action pursuant to Va. Code Ann. 18.1-236.3.
212 Va. 554, 186 S. E. 2d 43, vacated and remanded.
Stanley M. Dietz argued the cause and filed a brief for petitioners.
James E. Kulp, Assistant Attorney General of Virginia, argued the cause for respondent. With him on the brief were Andrew P. Miller, Attorney General, and Robert E. Shepherd, Jr., Assistant Attorney General. *
[ Footnote * ] Ralph J. Schwarz, Jr., Mel S. Friedman, and Joel Hirschhorn filed a brief for the First Amendment Lawyers' Association as amicus curiae urging reversal.
The judgment of the Supreme Court of Virginia is vacated and the case is remanded for further proceedings not inconsistent with Miller v. California, ante, at 23-25, Paris Adult Theatre I v. Slaton, ante, at 58 n. 7, and Heller v. New York, ante, p. 483. See United States v. 12 200-ft. Reels of Film, ante, at 129-130 and n. 7. A trial by jury is not constitutionally required in this state civil proceeding pursuant to 18.1-236.3 of the Code of Virginia, 1950, as amended. See Mclancon v. McKeithen, 345 F. Supp. 1025, 1027, 1035-1045, 1048 (ED La.), aff'd sub nom. Mayes v. Ellis, 409 U.S. 943 (1972), and Hill v. McKeithen, 409 U.S. 943 (1972). Cf. Kingsley Books, Inc. v. Brown, 354 U.S. 436, 443 -444 (1957).
MR. JUSTICE BRENNAN, with whom MR. JUSTICE STEWART and MR. JUSTICE MARSHALL join, dissenting.
I would reverse the judgment of the Supreme Court of Virginia and remand the case for further proceedings not inconsistent with my dissenting opinion in Paris Adult Theatre I v. Slaton, ante, p. 73. See my dissent in Miller v. California, ante, p. 47. [413 U.S. 836, 838]