On petition for writ of certiorari to the United States Court of Appeals for the Second Circuit.
The petition for a writ of certiorari is denied.
Mr. Justice DOUGLAS, being of the view that any federal ban on obscenity is prohibited by the First Amendment (see United States v. 12 200-ft. Reels of Film, 413 U.S. 123 , 130-138 (1973) [418 U.S. 934 , 935] (Douglas, J., dissenting)), would grant certiorari and reverse the judgment of conviction.
Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr. Justice MARSHALL join, dissenting.
Petitioners were convicted in the United States District Court for the Eastern District of New York of transporting allegedly obscene materials in interstate commerce for the purpose of sale in violation of 18 U.S.C. 1465, which provides in pertinent part as follows:
The Court of Appeals for the Second Circuit affirmed the convictions, 464 F.2d 320 (1973). This Court vacated the judgments and remanded the case to the Court of Appeals for further consideration in light of Miller v. California, 413 U.S. 15 (1973), and companion cases. The Court of Appeals again affirmed the convictions.
I adhere to my dissent in United States v. Orito, 413 U.S. 139, 147 , in which, speaking of 18 U.S.C. 1462, which is similar in scope to 1465, 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.' Id., [418 U.S. 934 , 936] at 147-148. For the reasons stated in my dissent in Miller v. California, 413 U.S. 15, 47 (1973), I would therefore grant certiorari, and, since the judgment of the Court of Appeals for the Second Circuit was rendered after Orito, 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).
Moreover, on the basis of the Court's own holding in Jenkins v. Georgia, 418 U.S. 153 (1974), its denial of certiorari is improper. As permitted by Supreme Court Rule 21(1), which provides that the record in a case need not be certified to this Court, the petitioners did not certify the allegedly obscene materials involved in this case. It is plain, therefore, that the Court, which has not requested the certification of those materials, has failed to discharge its admitted responsibility under Jenkins independently to review those materials under the second and third parts of the Miller obscenity test. Nor can it be assumed that the court below performed such a review, since that responsibility was not made clear until Jenkins. Petitioners have thus never been provided the independent judicial review to which the Court held them entitled in Jenkins. At a minimum, the Court should vacate the judgment below and remand for such a review.
Finally, it does not appear from the petition 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), [418 U.S. 934 , 937] I believe that, consistent with the Due Process Clause, petitioners must be given an opportunity to have their cases decided on, and introduce evidence relevant to, the legal standard upon which their convictions have ultimately come to depend. Thus, even on its own terms, the Court should vacate the judgment below and remand for a determination whether petitioners 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.