The appeal is dismissed for want of a substantial federal question.
Mr. Justice DOUGLAS, being of the view that any state ban on obscenity is prohibited by the First Amendment, made applicable to the States by the Fourteenth (see Paris Adult Theatre I v. Slaton, 413 U.S. 49 , 70-73 (1973) (Douglas, J., dissenting)), would note jurisdiction and reverse the judgment of conviction.
Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr. Justice MARSHALL join, dissenting.
Appellant was convicted in the Orange County, California Superior Court of distributing obscene matter in violation of California Penal Code 311.2 which provides in pertinent part as follows:
It is my view that 'at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults, the First and Fourteenth Amendment 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). Since it is clear that, when tested by that constitution standard, the term 'obscene matter' in 311.2, as defined in 311(a) is 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), and because the judgment of the Appellate Department of the California Superior Court was rendered after Miller, I would reverse. 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 ) (Brennan, J., dissenting).
Finally, it does not appear from the jurisdictional statement and response that the obscenity of the disputed materials was adjudged by applying local community standards. Based on my dissent in Hamling v. United States, 418 U.S. 87, 141 , 2919 (1974 ), I believe that, consistent with the Due Process Clause, appellant must be given an opportunity to have his case decided on, and introduce evidence relevant to, the legal standard upon which his conviction [418 U.S. 915 , 917] has ultimately come to depend. Thus, even on its own terms, the Court should vacate the judgment below and remand for a determination whether appellant should be afforded a new trial under local community standards.
[ Footnote * ] Although four of us would grant and reverse, the Justices who join this opinion do not insist that the case be decided on the merits.