Rehearing Denied Feb. 18, 1975.
See 420 U.S. 939 , 1151.
The stays (A-1282 and A-1283) heretofore granted on July 9, 1974, by Mr. Justice STEWART are hereby vacated.
The appeals are dismissed for want of a substantial federal question.
Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr. Justice MARSHALL join, dissenting.
Appellants were convicted in the Court of Common Pleas of Hamilton County, Ohio, of possession of allegedly obscene materials with intent to distribute the materials in violation of Ohio Revised Code 2905.35, which provided in pertinent part at the time of the alleged offense as follows:
As used in 2905.35,
On appeal, the Court of Appeals of Hamilton County affirmed the convictions. The Supreme Court of Ohio dismissed the appeals.
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 suppress sexually oriented materials on the basis of their allegedly 'obscene' contents.' [419 U.S. 1062 , 1064] Paris Adult Theatre I v. Slaton, 413 U.S. 49, 113 d 446, (1973) (Brennan, J., dissenting). It is clear that, tested by that constitutional standard, 2905.35, as it incorporated the definition of 'obscene' of 2905.34, was constitutionally overbroad and therefore invalid on its face. For the reasons stated in my dissent in Miller v. California, 413 U.S. 15, 47 (1973), I would therefore note probable jurisdiction and, since the judgment of the Court of Appeals of Hamilton County was rendered after Miller, reverse.* In that circumstance, I have no occasion to consider whether the other questions presented in addition to those already treated merit plenary review. See Heller v. New York, 413 U.S. 494, 495 (1974 ) (Brennan, J., dissenting).
Mr. Justice DOUGLAS, being of the view that any state or federal ban on, or regulation of, obscenity is prohibited by the Constitution, Roth v. United States, 354 U.S. 476 , 508-514 (1957); Miller v. California, 413 U.S. 15 , 42-47 ( 1973); Paris Adult Theatre I v. Slaton, 413 U.S. 49 , 70-73 (1973), would note probable jurisdiction and summarily reverse.
Further, 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 (1974), I believe that, consistent with the Due Process Clause, appellant must be given an opportunity to have his case decided upon, and introduce evidence relevant to, the legal standard upon which his conviction 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 note probable jurisdiction and reverse, the Justices who join this opinion do not insist that the case be decided on the merits.