GAY TIMES, INC. v. LOUISIANA 414 U.S. 994 (1973)

On petition for writ of certiorari to the Supreme Court of Louisiana.

Petition for writ of certiorari granted, judgment vacated, and case remanded to the Supreme Court of Louisiana for further consideration in light of Miller v. California, 413 U.S. 15 ( 1973); Paris Adult Theatre I v. Slaton, 413 U.S. 49 , 37 L. Ed.2d 446 (1973); Kaplan v. California, 413 U.S. 115 , 37 L. Ed.2d 492 (1973); United States v. 12 200-ft. Reels of Super 8 mm. Film, 413 U.S. 123 (1973); United States 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).

Opinion on remand, 294 So.2d 496.

Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr. Justice MARSHALL concur, dissenting.

Petitioner was convicted on charges of exhibiting [414 U.S. 994 , 995]   allegedly obscene motion pictures in violation of 14:106(A)(2) of the Louisiana Revised Statutes, which provides as follows:

'Obscenity is the intentional:

* * * * *

'(2) Production, sale, exhibition, gift, or advertisement with the intent to primarily appeal to the prurient interest of the average person, of any lewd, lascivious, filthy or sexually indecent written composition, printed composition, book, magazine, pamphlet, newspaper, story, paper, writing, photograph record, picture, drawing, motion picture film, figure, image, wire or tape recording or any written, printed or recorded matter of sexually indecent character which may or may not require mechanical or other means to be transmitted into auditory, visual or sensory representations of such sexually indecent character.'

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.' Paris Adult Theatre I v. Slaton, 413 U.S. 49, 73 (1973) (dissenting opinion). It is clear that, tested by that constitutional standard, 14:106(A)(2) is 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 grant certiorari, vacate the judgment of the Supreme Court of Louisiana, and remand for further proceedings not inconsistent with my dissent in Paris Adult. In that circumstance, I have no occasion to consider whether the questions [414 U.S. 994 , 996]   presented in the petition merit plenary review. See Heller v. New York, 413 U.S. 483, 494 (1973) (dissent of Brennan, J.).

Mr. Justice DOUGLAS, being of the view that state obscenity regulation is prohibited by the Fourteenth and First Amendments (see Paris Adult Theatre I v. Slaton, 413 U.S. 49, 70 ( Douglas J., dissenting)), would grant certiorari in this case and reverse the judgment of conviction.