On petition for writ of certiorari to the United States Court of Appeals for the Fifth Circuit.
The petition for a writ of certiorari is denied.
Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr. Justice MARSHALL join, dissenting.
Petitioners were convicted in the United States District Court of the Southern District of Florida of using the mails to distribute allegedly obscene materials in violation of 18 U.S.C. 1461, which provides in pertinent part as follows:
The Court of Appeals for the Fifth Circuit affirmed, 490 F.2d 78 ( 1974).
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 1461, 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., 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 Fifth 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).
Mr. Justice DOUGLAS, being of the view that any state or federal ban on, or regulation of, obscenity is prohibited by the Constitution, Miller v. California, 413 U.S. 15 , 43-48; Paris Adult Theatre I v. Slaton, 413; U.S. 49, 70-73, would grant certiorari in this case and summarily reverse.
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 (1974), I believe that, consistent with the Due Process Clause, petitioners must be given an opportunity to have [419 U.S. 911 , 913] 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.