On petition for writ of certiorari to the United States Court of Appeals for the Fifth Circuit.
Petition for writ of certiorari granted, judgment vacated, and case remanded to the United States Court of Appeals for the Fifth Circuit for further consideration in light of Miller v. California, 413 U.S. 15 , 93 S. Ct. 2607 (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 Super 8 mm. Film, 413 U.S. 123 ( 1973); United State 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 BRENNAN, with whom Mr. Justice STEWART and Mr. Justice MARSHALL concur, dissenting.
Petitioner was convicted in the United States District Court for the Northern District of Texas on charges of using a common carrier for carriage of allegedly obscene matter in violation of 18 U.S.C. 1462, which provides as follows:
A panel of the Court of Appeals for the Fifth Circuit reversed the conviction. 475 F.2d 550 (1972). On rehearing en banc, the panel was overruled and petitioner's judgment of conviction was affirmed. 479 F.2d 577 (1973).
I adhere to my dissent in United States v. Orito, 413 U.S. 139, 147 (1973), in which, speaking of 18 U.S.C. 1462, I expressed the view that '[w]hatever the extent of the Federal Government's power to bar the distribution of allegedly obscene material to juveniles or the offensive exposure of such material to unconsenting adults, the statute before us is clearly overbroad and unconstitutional 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, vacate the judgment of the Court of Appeals for the Fifth Circuit, and remand for further proceedings consistent with my dissent in Paris Adult Theatre I v. Slaton, 413 U.S. 49, 73 (1973). In that circumstance, I have no occasion to consider whether the other questions presented merit plenary review. See Heller v. New York, 413 U.S. 483, 494 (1973 ) (dissenting opinion of Brennan, J.).
Mr. Justice DOUGLAS, being of the view that the federal obscenity regulation is prohibited by the First Amendment (see United States v. 12 200-Ft. Reels of Film, 413 U.S. 123, 130 ( Douglas, J., dissenting), would grant certiorari in this case and reverse the judgment of conviction.