The appeal is dismissed for want of a substantial federal question.
Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr. Justice MARSHALL concur, dissenting.
Appellants sought in the 44th Judicial District Court of Dallas County, Texas, to enjoin pending and future prosecutions uner Vernon's Ann. Texas Penal Code Art. 527, 3, arising out of the seizure of motion picture films alleged to be 'obscene matter' within 3. All parties agree that Texas law permits equitable intervention in a criminal proceeding if the criminal statute involved is unconstitutional, or otherwise void, and enforcement would result in irreparable injury to property rights. See State ex rel. Flowers v. Woodruff, 150 Tex.Cr.R. 255, 200 S.W.2d 178 (1947 ). Appellants challenged the constitutionality under the First, Fifth, and Fourteenth Amendments of Art. 527, 9(h) of the Texas Penal Code, enacted as an aid to the enforcement of 3, which is Texas' basic criminal obscenity statute. Section 9(h) provides as follows:
Obscenity for purposes of Art. 527 is defined in 1:
The 44th Judicial District Court denied appellants' request for relief. The Texas Court of Civil Appeals affirmed, holding that the appellants had failed to establish the unconstitutionality of 9(h). Procaccini v. Jones, 488 S.W.2d 543 (Tex.Civ.App. [414 U.S. 951 , 953] 1972). The Supreme Court of Texas denied a writ of error and overruled a subsequent motion 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 supress sexually oriented materials on the basis of their allegedly 'obscene' contents.' Paris Adult Theatre I v. Slaton, 413 U.S. 49, 113 (1973) (dissenting opinion). Since it is clear that, when tested by that constitutional standard, the word 'obscene' in 3 and 9(h), read as defined in 1, renders 3 and 9(h) unconstitutionally overbroad and therefore facially invalid, I disagree with the holding that the appeal does not present a substantial federal question, and therefore dissent from the Court's dismissal of the appeal.
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 dissent. In that circumstance, I have no occasion to consider at this time whether, if 1 were properly narrowed, appellants' challenge to the constitutionality of 9(h) would merit plenary review. See Heller v. New York, 413 U.S. 483, 494 (1973) ( Brennan, J., dissenting).
Mr. Justice DOUGLAS, being of the view that the Fourteenth and Firth Amendments prohibit state obscenity regulation, would vacate the judgment below and remand for further proceedings consistent with his dissent in Paris Adult Theatre I v. Slaton, 413 U.S. 49, 70 d 446.